Latisha Babb v. Jennifer Lozowsky

Appellants-Respondents Jennifer Lo-zowsky, the Warden, and the Nevada Attorney General (“the State”) appeal the district court’s grant of a writ of habeas corpus to Appellee-Petitioner Latisha M. Babb pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 . Babb was convicted of first degree murder with a deadly weapon, and robbery with a deadly weapon, by a jury in Nevada state court for the murder of cab driver John Castro in connection with a robbery. The district court granted habeas relief, concluding that one of the instructions for first degree murder given in Babb’s case, known as the Kazalyn instruction, violated her due process rights and that the improper instruction did not constitute harmless error.

We REVERSE.

Background

On October 26, 1997, cab driver John Castro was found shot in the head in Washoe County, Nevada. He ultimately died from the wound.

While investigating another shooting, police obtained warrants to search the home and vehicle of Babb’s codefendant and live-in boyfriend, Shawn Harte. At the time the police stopped Harte in his car, Babb was with him. The police found a .22 caliber pistol, a…