Frederic Dixon v. Brian Williams, Sr., et al

Filing

FILED PER CURIAM OPINION (JOHN T. NOONAN, SIDNEY R. THOMAS and MARSHA S. BERZON) REVERSED AND REMANDED. FILED AND ENTERED JUDGMENT. [9077362]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FREDERIC K. DIXON,
Petitioner-Appellant,

No. 10-17145

v.

D.C. No.
2:09-cv-00066PMP-PAL

BRIAN E. WILLIAMS, SR.; ATTORNEY
GENERAL OF THE STATE OF NEVADA,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted
March 10, 2014—San Francisco, California
Filed April 30, 2014
Before: John T. Noonan, Sidney R. Thomas,
and Marsha S. Berzon, Circuit Judges.
Per Curiam Opinion

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DIXON V. WILLIAMS
SUMMARY*

Habeas Corpus
The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a jury
instruction on self-defense.
The trial court gave an inaccurate jury instruction that an
honest but “reasonable” (instead of “unreasonable”) belief in
the necessity for self-defense does not negate malice and does
not reduce the offense from murder to manslaughter. The
panel held that this error was not harmless, because the error
reduced the State’s burden for convicting petitioner of murder
instead of voluntary manslaughter, and improperly limited the
jury’s consideration of the kind of provocation that could give
rise to manslaughter, even if the other elements of
manslaughter were established.

COUNSEL
Randolph Fiedler (argued) and Debra A. Bookout, Assistant
Federal Public Defenders; Rene L. Valladares, Federal Public
Defender, Las Vegas, Nevada, for Petitioner-Appellant.
Michael J. Bongard (argued), Deputy Attorney General;
Catherine Cortez Masto, Nevada Attorney General, Ely,
Nevada, for Respondent-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
PER CURIAM:
Petitioner Frederic K. Dixon seeks federal habeas relief
on the basis that the state trial court improperly instructed the
jury on self-defense in violation of his Fourteenth
Amendment right to due process. We agree and reverse the
district court’s denial of habeas relief.
I
Dixon was charged in the district court of Clark County,
Nevada with murder with a deadly weapon for the shooting
death of Derrick Nunley on November 14, 2003.
The parties do not dispute most of the facts related to the
shooting, including the following: Early in the morning on
the day of the shooting, Dixon went to Club 7, a night club in
Las Vegas, with his two younger brothers, Gabriel and
Marcus Anderson. When Dixon’s girlfriend tried to leave,
Troy Nunley (also known as Fly) and his friends were
standing next to her vehicle in the parking lot. The Nunley
group was asked to move to allow her to leave. They refused,
and she hit Nunley in the arm as she backed up her car.
Nunley became upset, kicked the woman’s car, and screamed
obscenities at her. When Dixon came out of the club, Nunley
began yelling at him as well, and, at some point, removed a
box cutter from his pocket. One of the club’s security
officers grabbed Nunley’s arm to prevent him from using the
box cutter.
Dixon and his brothers left the club’s parking lot, and
drove to the Palms Hotel and Casino. They were followed by

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a group of Nunley’s friends, who made threatening gestures
through the windows of their vehicles. After Dixon and his
brothers reached the parking lot of the Palms, Nunley’s
friends arrived. Due to the loud commotion, the Palms
security personnel did not allow the groups to enter the
casino. In the parking lot, a fist fight began between
Nunley’s group and Dixon’s group. Someone in Nunley’s
group began throwing rocks at Dixon and his brothers.
Nunley pulled out the box cutter again, and brandished it at
Dixon, repeatedly threatening that “I’m going to cut your face
off,” and that he would kill Dixon.
At some point, Nunley returned to his car and entered it
from the passenger side, without closing the door. Dixon
returned to his vehicle, got a gun, ran to Nunley’s car, and
shot him four times. Nunley died at the scene.
At trial, Dixon did not deny shooting Nunley. Instead, he
argued that he shot Nunley in self-defense. Jury Instruction
19, which set forth the basic parameters of self-defense,
contained an error. The instruction stated in full:
The killing of another person in self-defense
is justified and not unlawful when the person
who does the killing actually and reasonably
believes:
1. That there is imminent danger that the
assailant will either kill him or cause him
great bodily injury; and
2. That it is absolutely necessary under
the circumstances for him to use in selfdefense force or means that might cause

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the death of the other person, for the
purpose of avoiding death or great bodily
injury to himself and/or others.
A bare fear of death or great bodily injury is
not sufficient to justify a killing. To justify
taking the life of another in self-defense, the
circumstances must be sufficient to excite the
fears of a reasonable person placed in a
similar situation. The person killing must act
under the influence of those fears alone and
not in revenge.
An honest but reasonable belief in the
necessity for self-defense does not negate
malice and does not reduce the offense from
murder to manslaughter.
The right of self-defense is not available to an
original aggressor, that is a person who has
sought a quarrel with the design to force a
deadly issue and thus through his fraud,
contrivance or fault, to create a real or
apparent necessity for making a felonious
assault.
However, where a person, without voluntarily
seeking, provoking, inviting, or willingly
engaging in a difficulty of his own free will, is
attacked by an assailant, he has the right to
stand his ground and need not retreat when
faced with the threat of deadly force.

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(emphasis added). It is undisputed that the italicized word
should have been “unreasonable.”1
The trial court instructed the jury on first-degree murder,
second-degree murder, voluntary manslaughter, and
involuntary manslaughter. “Murder” was defined as “the
unlawful killing of a human being, with malice aforethought,
either express or implied.” In contrast, Instruction 12
provided:
Voluntary Manslaughter is the unlawful
killing of a human being, without malice
aforethought and without deliberation or
premeditation. It is a killing upon a sudden
quarrel or heat of passion, caused by a
provocation sufficient to make the passion
irresistible.
The provocation required for Voluntary
Manslaughter must either consist of a serious
and highly provoking injury inflicted upon the
person killing, sufficient to excite an
irresistible passion in a reasonable person, or
an attempt by the person killed to commit a
serious personal injury on the person killing.
For the sudden, violent impulse of passion to
be irresistible resulting in a killing, which is
Voluntary Manslaughter, there must not have

1

The trial court noticed a spelling error in the same instruction — in the
last paragraph, “attacked” was misprinted as “attached” — made a
handwritten correction to the instruction, and informed the jurors of the
correction.

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been an interval between the assault or
provocation and the killing sufficient for the
voice of reason and humanity to be heard; for,
if there should appear to have been sufficient
time for a cool head to prevail and the voice
of reason to be heard, the killing shall be
attributed to deliberate revenge and
determined by you to be murder. The law
assigns no fixed period of time for such an
interval but leaves its determination to the
jury under the facts and circumstances of the
case.
Instruction 13 further stated:
The heat of passion which will reduce a
homicide to Voluntary Manslaughter must be
such an irresistible passion as naturally would
be aroused in the mind of an ordinarily
reasonable person in the same circumstances.
A defendant is not permitted to set up his own
standard of conduct and to justify or excuse
himself because his passions were aroused
unless the circumstances in which he was
placed and the facts that confronted him were
such as also would have aroused the
irresistible passion of the ordinarily
reasonable man if likewise situated. The basic
inquiry is whether or not, at the time of the
killing, the reason of the accused was
obscured or disturbed by passion to such an
extent as would cause the ordinarily
reasonable person of average disposition to
act rashly and without deliberation and

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reflection and from such passion rather than
from judgment.

The jury found Dixon guilty of second-degree murder
with a deadly weapon.2 Dixon was sentenced to life with the
possibility of parole.
Dixon appealed, arguing, among other things, that the
self-defense instruction was clearly erroneous. The Nevada
Supreme Court affirmed the conviction. It agreed that the
jury instruction was erroneous:
Jury Instruction 19, which attempts to
describe[] the standard for self-defense, reads
in part: “An honest but reasonable belief in
the necessity for self-defense does not negate
malice and does not reduce the offense from
murder to manslaughter.” This is clearly an
incorrect statement of the law. The jury
instruction should read: “An honest but
unreasonable belief in the necessity for selfdefense does not negate malice and does not
reduce the offense from murder to
manslaughter.”
(emphasis in original). But, applying a harmless error
analysis, the Nevada Supreme Court held that the error did
not warrant a new trial. It stated,

2

The jury began deliberating at about 7:10 p.m. on Thursday, October
28, 2004, and returned a verdict by 2:32 a.m. on Friday, October 29, 2004.
It does not appear that the jurors asked the trial court any questions during
their deliberations.

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We conclude that this error was harmless.
The first four paragraphs of Jury Instruction
19 state correctly that a defendant who
reasonably believes there is imminent danger
of death or bodily harm may use deadly force
to defend himself. The instruction then
incorrectly states that an honest but
reasonable belief will not reduce a murder
charge to manslaughter.
Eyewitnesses testified that the altercation
between Dixon and Nunley was over before
Dixon shot him. Nunley had put away a knife
and was walking back toward his car. Dixon
had stepped back from the scene, and the
direct physical confrontation was over. The
jury heard testimony that Dixon then walked
deliberately back to his car, unlocked the
door, and grabbed a gun. Dixon then ran over
to Nunley’s vehicle and shot him repeatedly.
Although one statement in the instruction was
incorrect, we conclude beyond a reasonable
doubt that, given the totality of the jury
instructions and the evidence admitted at trial,
the error did not substantially prejudice the
jury’s deliberations and verdict.
Dixon filed a pro se state post-conviction petition, which
the state district court denied. Dixon timely appealed, and the
Nevada Supreme Court affirmed the district court’s decision.
Thereafter, Dixon filed a pro se federal habeas corpus
petition raising the erroneous jury instruction. The district

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court denied the petition, holding that the state Supreme
Court’s denial of the claim on direct appeal was not contrary
to, or an unreasonable application of, federal law, and was not
based on an unreasonable finding of fact. A panel of this
court granted Dixon a certificate of appealability as to
“whether the trial court’s jury instruction on self-defense
deprived appellant of due process.” Thereafter, counsel was
appointed to represent Dixon on appeal.
II
A writ of habeas corpus may be issued for a state prisoner
only if “he is in custody in violation of the Constitution or
law or treaties of the United States.”
28 U.S.C.
§§ 2241(c)(3), 2254(a). Under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), which applies to
Dixon’s petition, a federal court may grant a habeas petition
with respect to a “claim that was adjudicated on the merits”
in state court only if the state’s decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). “A
district court’s decision to grant or deny a petition for habeas
corpus under 28 U.S.C. § 2254 is reviewed de novo.” Dows
v. Wood, 211 F.3d 480, 484 (9th Cir. 2000) (citation omitted).
A
“When considering an allegedly erroneous jury
instruction in a habeas proceeding, an appellate court first
considers whether the error in the challenged instruction, if
any, amounted to ‘constitutional error.’” Evanchyk v.

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Stewart, 340 F.3d 933, 939 (9th Cir. 2003) (internal quotation
marks and citation omitted). “In a criminal trial, the State
must prove every element of the offense, and a jury
instruction violates due process if it fails to give effect to that
requirement.” Middleton v. McNeil, 541 U.S. 433, 437
(2004). But “not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due
process violation.” Id. The appropriate inquiry “is whether
the ailing instruction . . . so infected the entire trial that the
resulting conviction violates due process.” Id. (quoting
Estelle v. McGuire, 502 U.S. 62, 72 (1991)) (internal
quotation marks omitted). “[A] single instruction to a jury
may not be judged in artificial isolation, but must be viewed
in the context of the overall charge.” Id. (quoting Boyde v.
California, 494 U.S. 370, 378 (1990)) (internal quotation
marks omitted).
“If the charge as a whole is ambiguous, the question is
whether there is a ‘reasonable likelihood that the jury has
applied the challenged instruction in a way’ that violates the
Constitution.” Id. (quoting Estelle, 502 U.S. at 72). But
“[t]his court is not required to use the ‘reasonable likelihood’
standard employed for ambiguous jury instructions ‘when the
disputed instruction is erroneous on its face.’” Ho v. Carey,
332 F.3d 587, 592 (9th Cir. 2003) (citation omitted).
When the Nevada Supreme Court addressed the
instructional error on direct appeal, it held that the instruction
“incorrectly states that an honest but reasonable belief will
not reduce a murder charge to manslaughter,” and was an
“inaccurate statement of the law.” In other words, the
Nevada Supreme Court held that such a belief in fact could
contribute to reducing a murder charge to manslaughter under
state law. That statement of the Nevada Supreme Court is

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binding on this court, Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (“a state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus”), and correctly
reflects the underlying law of manslaughter in Nevada.3
The error did reduce the State’s burden for convicting
Dixon of murder instead of voluntary manslaughter. As
correctly noted in the other instructions, “[m]urder is the
unlawful killing of a human being, with malice aforethought,
either express or implied,” but “[v]oluntary manslaughter is
the unlawful killing of a human being, without malice
aforethought and without deliberation or premeditation.” The
instructions also properly explained that voluntary
manslaughter “is a killing upon a sudden quarrel or heat of
passion, caused by a provocation sufficient to make the
passion irresistible.” They further stated that the required

3

The State’s characterization of the Nevada Supreme Court’s holding
on direct appeal is incorrect. The State maintains that the Nevada
Supreme Court held that the portion of the jury instructions with the error
was intended to address the doctrine of imperfect self-defense, which
Dixon had not tried to invoke at trial, and the corrected version only tells
jurors that this defense is not available in Nevada, so Dixon could not
have benefitted from the defense if the jury had been properly instructed.
See Runion v. State, 13 P.3d 52, 59 (Nev. 2000); Hill v. State, 647 P.2d
370, 370–71 (Nev. 1982). In states that recognize this defense, if a
defendant entertained an honest but unreasonable belief in the necessity
of self-defense, the greatest charge of which he can be convicted is
manslaughter, because such a belief would by itself negate malice, which
is a required element for murder. Hill, 647 P.2d at 371.
But the Nevada Supreme Court only made this observation
“[a]dditionally,” and in a footnote. Its primary holding was that the
instruction as actually given contained an incorrect statement of the law
regarding murder and manslaughter, as discussed in the text.

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provocation “must either consist of a serious and highly
provoking injury inflicted upon the person killing, sufficient
to excite an irresistible passion in a reasonable person, or an
attempt by the person killed to commit a serious personal
injury on the person killing.” (emphasis added). But because
the jurors also were told that an “honest but reasonable belief
in the necessity for self-defense . . . does not reduce the
offense from murder to manslaughter,” the jurors were not
permitted to find the second, “serious personal injury”
provocation required for voluntary manslaughter even if they
determined that Dixon had honestly and reasonably believed
that Nunley had attempted or was attempting to kill or
seriously physically injure him.
Under state law, such a belief may contribute to reducing
the murder charge to manslaughter, by helping establish the
requisite provocation. The instruction was facially erroneous,
because it stated otherwise.4 As a result, the kind of
provocation that could give rise to manslaughter was
improperly limited, even if the other elements of
manslaughter were established. And the error was a
constitutional one, as it made more onerous for the defendant,
and less onerous for the prosecution, conviction for a lesser
rather than a greater offense. See Cool v. United States,
409 U.S. 100, 104 (1972); Mendez v. Knowles, 556 F.3d 757,
768 (9th Cir. 2009).

4

The jury was given otherwise accurate instructions regarding selfdefense. But those instructions addressed self-defense as a complete
defense to the killing. The erroneous instruction, in contrast, dealt with
the reduction of the offense from murder to manslaughter by negating
malice. It is the only instruction that directly addressed the relationship
of self-defense to this reduction.

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B

“Even where constitutional error is found, ‘in § 2254
proceedings a court must [also] assess the prejudicial impact
of constitutional error’ under the Brecht [v. Abrahamson,
507 U.S. 619 (1993)] standard.” Merolillo v. Yates, 663 F.3d
444, 454 (9th Cir. 2011) (quoting Fry v. Pliler, 551 U.S. 112,
121–22 (2007)) (first alteration in original). Under Brecht,
habeas petitioners are entitled to relief if “the error ‘had
substantial and injurious effect or influence in determining
the jury’s verdict.’” 507 U.S. at 637. As explained by the
Supreme Court,
[I]f one cannot say, with fair assurance, after
pondering all that happened without stripping
the erroneous action from the whole, that the
judgment was not substantially swayed by the
error, it is impossible to conclude that
substantial rights were not affected. The
inquiry cannot be merely whether there was
enough to support the result, apart from the
phase affected by the error. It is rather, even
so, whether the error itself had substantial
influence.
Merolillo, 663 F.3d at 454 (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)) (alteration in original).
“Where the record is so evenly balanced that a judge ‘feels
himself in virtual equipoise as to the harmlessness of the
error’ and has ‘grave doubt’ about whether an error affected
a jury [substantially and injuriously], the judge must treat the
error as if it did so.’” Id. (quoting O’Neal v. McAninch,
513 U.S. 432, 435-38 (1995)) (alteration in original).

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The State suggests that Dixon must fulfill both the Brecht
test and also show “that the Nevada Supreme Court’s
application of United States Supreme Court law was
objectively unreasonable” under AEDPA. But the Supreme
Court has “explained that we need not conduct an analysis
under AEDPA of whether the state court’s harmlessness
determination on direct review — which is governed by the
‘harmless beyond a reasonable doubt’ test set forth in
Chapman v. California, 386 U.S. 18, 24 (1967) — was
contrary to or an unreasonable application of clearly
established federal law.” Pulido v. Chrones, 629 F.3d 1007,
1012 (9th Cir. 2010) (citing Fry, 551 U.S. at 119–20). “This
is because the Brecht test ‘obviously subsumes’ the ‘more
liberal AEDPA/Chapman standard which requires only that
the state court’s harmless-beyond-a-reasonable-doubt
determination be unreasonable.’” Id. (quoting Fry, 551 U.S.
at 120). Thus, “[w]e ‘apply the Brecht test without regard for
the state court’s harmlessness determination.’” Ayala v.
Wong, No. 09-99005, slip op. at 33–34 (9th Cir. Feb. 25,
2014) (quoting Pulido, 629 F.3d at 1012). Applying the
Brecht test, we conclude that the instructional error had
substantial and injurious influence on the jury’s verdict.
As the Nevada Supreme Court noted, there was testimony
that the confrontation between Dixon and Nunley was over
and Nunley had retreated to his car by the time Dixon went to
his own car, retrieved a gun, ran to Nunley’s car and shot him
while saying, “That’s what you get for pulling a knife on
me.” But there was other testimony that could have
supported a finding of adequate provocation for voluntary
manslaughter purposes, had the jury been properly instructed.
Among other evidence, Dixon’s younger brother, Gabriel
Anderson, who was present throughout the relevant events,

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testified about dangerous confrontations in different settings,
in all of which Nunley, not Dixon, was the aggressor and
during all of which Dixon tried repeatedly to de-escalate the
situation, only to have Nunley continue his threats and
violence. Anderson described an atmosphere in which the
brothers were faced with Nunley and his threatening friends,
making him “scared for my life.” In the first parking lot, for
example, Anderson saw Nunley hold a box cutter and appear
to be ready to use it “to cut or stab” Dixon, a possibility that
dissipated only when a security guard intervened. Also at
that location, Anderson witnessed Nunley’s friends yelling
and screaming threats at Dixon.
In the second parking lot, Anderson heard several people
in Nunley’s group yelling at him and his brothers, “Going to
kill you mother fucker. You’re not getting out of Las Vegas
alive. You mother fuckers are going to die.” He described
trying to leave the parking lot for the safety of the casino,
only to be prevented from entering by security guards.
Anderson then saw Nunley “jump[] out with a knife” and
swing it at Dixon, while telling Dixon repeatedly, “I’m going
to cut your mother fuckin’ face off.” Nunley also threatened
Dixon, “You can dodge this knife, but you can’t dodge these
bullets.” Anderson then saw Nunley “[take] off towards his
car.”
Dixon’s defense counsel argued that Dixon reasonably
believed that Nunley was going to his car to retrieve a gun, to
follow through on his threat that Dixon would not be able to
“dodge” his “bullets.” The defense also maintained that
Nunley was not about to leave the scene, based on the
testimony that he had entered the car’s passenger side door,
not the driver’s side, and had left the door open.

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That Nunley was the aggressor, and that Dixon was
“frightened,” “not aggressive” and tried to end the
confrontations was corroborated by Nunley’s friend, Jermaine
Clay. Clay further corroborated many of the threats that
Nunley made to Dixon and the intimidating actions taken by
Nunley’s friends, such as throwing rocks at Dixon and his
brothers. Clay also heard Nunley continue to say things to
Dixon as Dixon walked toward Nunley’s car.
At trial, a psychiatrist testified that, “to a reasonable
degree of medical probability, Mr. Dixon interpreted the
collective behavior of the victim as an authentic and
immediate threat to his life and to the lives of his . . .
brothers.” The psychiatrist also stated that “Mr. Dixon was
convinced that he . . . and his family were in acute danger,
vital danger, that he was going to be killed and he acted in
accordance with that perception.”
In short, although there was also evidence to the contrary,
there was considerable evidence the jury could have credited
that Dixon had acted with adequate provocation, even though
he could not establish the elements of the defense of selfdefense and thereby avoid conviction for the killing
altogether. In light of the other events, in which Nunley had
repeatedly brandished a knife and threatened Dixon, and was
the original aggressor, the jurors could have decided that
Dixon had an “honest but reasonable belief in the necessity
for self-defense,” because Nunley had attempted to commit
“a serious personal injury on” Dixon, and that insufficient
time had passed between the provocation and shooting for the
passion thereby provoked to pass and “a cool head to
prevail.” Jury Instr. No. 12. Thus, but for the erroneous jury
instruction, the jurors reasonably may have convicted on the
reduced charge of voluntary manslaughter instead of second-

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degree murder. “[B]ecause we have ‘grave doubt[s] as to the
harmlessness of [this] error,’ we must rule for the Petitioner.”
Cudjo v. Ayers, 698 F.3d 752, 770 (9th Cir. 2012) (alterations
in original).
We note that the outcome is the same under the
AEDPA/Chapman standard. Chapman provides that “the test
for determining whether a constitutional error is harmless . . .
is whether it appears ‘beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained.’” Neder v. United States, 527 U.S. 1, 15 (1999)
(quoting Chapman, 386 U.S. at 24). Here, the Nevada
Supreme Court “conclude[d] beyond a reasonable doubt that,
given the totality of the jury instructions and the evidence
admitted at trial, the error did not substantially prejudice the
jury’s deliberations and verdict.” Although the Nevada
Supreme Court stated that it considered in so concluding “the
totality of . . . the evidence admitted at trial,” it recited only
the testimony that supported the verdict and did not
acknowledge any of the testimony supporting provocation
through reasonable fear of serious injury. Proper application
of the Chapman standard requires consideration of “the trial
record as a whole.” Vasquez v. Hillery, 474 U.S. 254, 269
(1986) (internal quotation marks and citation omitted).
We reverse the district court’s denial of Dixon’s petition
for writ of habeas corpus, and remand with instructions to
grant a conditional writ as to the second-degree murder
conviction, requiring the State to release Dixon from custody
as to that conviction unless the State initiates new trial
proceedings within a reasonable period of time to be
determined by the district court.
REVERSED and REMANDED.

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