Peter Elvik v. Renee Baker

FILED

NOT FOR PUBLICATION

OCT 26 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

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, Warden and

ATTORNEY GENERAL OF THE STATE

OF NEVADA, ORDER

Respondents-Appellants.

PETER ELVIK, No. 14-15126

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

RENEE BAKER, Warden and

ATTORNEY GENERAL OF THE STATE

OF NEVADA,

Respondents-Appellees. Before: SCHROEDER and N.R. SMITH, Circuit Judges, and KRONSTADT,* District Judge. The prior memorandum disposition and dissent filed on June 28, 2016, are

hereby amended concurrent with the filing of the amended disposition today. With

these amendments, Judge N.R. Smith has voted to deny the petition for rehearing

en banc, and Judges Schroeder and Kronstadt have so recommended.

The full court was advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for rehearing en banc is DENIED. No further…

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

ORDER

The prior memorandum disposition and dissent filed on June 28, 2016, are hereby amended concurrent with the filing of the amended disposition today. With these amendments, Judge N.R. Smith has voted to deny the petition for rehearing en banc, and Judges Schroeder and Kronstadt have so recommended.

The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed in response to the amended disposition.

AMENDED MEMORANDUM *

The Nevada Attorney General appeals the district court’s order conditionally granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus petition, arguing 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 trial court’s failure to provide a jury instruction was not a harmless error. We affirm.

1. The district court was not obligated to develop…

concurring in part and dissenting in part:

I concur with the conclusion of the majority that “[t]he district court was not obligated to develop alternative theories to support the Nevada Supreme Court’s decision.” I also agree with its statements that “Nevada Revised Statute section 194.010 creates a presumption that children (between the ages of eight years and fourteen *542 years) lack the capacity to distinguish right from wrong” and that as a result, “the prosecution bears the burden of rebutting this presumption by establishing, through clear proof, ‘that at the time of committing the act .., [the child] knew its wrongfulness.’” (quoting Nev. Rev. Stat. § 194.010 ). Finally, I agree with the majority’s description of the Brecht standard, which on collateral review governs the determination of whether an error is harmless, as clarified in Davis v. Ayala, — U.S. -, 135 S.Ct. 2187 , 192 L.Ed.2d 323 (2015). I disagree, however, with the application of the Brecht standard by the majority to the record evidence. Therefore, I respectfully dissent from its conclusion that “[t]he trial court’s failure to provide the jury with an instruction regarding Nevada Revised Statute section…