Kieren, Jr. v. State of Nevada Attorney General

Filing 95

ORDER denying ECF No. 86 Motion for Reconsideration. Signed by Judge Larry R. Hicks on 3/5/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DENNIS K. KIEREN, JR.,

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Petitioner, ORDER
v.
STATE OF NEVADA ATTORNEY
GENERAL, et al.,
Respondents.

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Case No. 3:07-cv-00341-LRH-WGC

This court denied petitioner Dennis K. Kieren, Jr.’s counseled motion for leave to

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file an amended 28 U.S.C. § 2254 habeas petition (ECF No. 83). Almost a year later,

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petitioner filed a motion for district court to reconsider its order denying the motion for

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leave to amend the petition (ECF No. 86). Respondents opposed (ECF No. 90), and

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Kieren replied (ECF No. 94).

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In 2011, this court—only reaching ground 5, the Kazalyn instruction claim —

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conditionally granted Kieren’s habeas petition (ECF No. 44). Ultimately, in September

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2014, the Ninth Circuit reversed (ECF No. 59). In its order reversing the grant of

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habeas relief as to ground 5 and remanding for consideration of the remaining claims,

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the Ninth Circuit discussed how White v. Woodall effectively overruled Babb and

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explained:

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…at least before 2003, it was not an unreasonable application of
clearly established federal law to not apply Byford v. State . . . to convictions
pending at the time that Byford was decided. Kieren’s conviction was
pending at the time Byford was decided, but his conviction became final –
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and the Nevada Supreme Court issued its relevant decision – in 2002. We,
therefore, hold that the Nevada Supreme Court did not unreasonably apply
clearly established federal law when it declined to apply Byford in Kieren’s
case.

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(ECF No. 59).1

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Upon remand, Kieren moved for leave to file an amended petition in order to

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assert a “Nika/Bunkley” claim in his federal habeas proceedings (ECF No. 75). This

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court denied leave to amend as futile: “[b]ecause the court of appeals reversed the

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grant of habeas relief in light of the current state—both at the time it issued its order and

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the date of this order—of the law regarding the Kazalyn instruction and federal habeas

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review.” Citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of

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amendment can, by itself, justify the denial of a motion for leave to amend.”); see also

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Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (ECF No. 83, p. 4).
A year after the denial of leave to amend, petitioner moves for reconsideration of

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the interlocutory order under Local Rule 59-1. The Local Rule provides that a movant

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may be entitled to relief where, among other things, there has been a change in legal or

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factual circumstances or an intervening change in controlling law.
Kieren argues that his factual circumstances have changed because the Nevada

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Supreme Court affirmed the denial of his most recent state postconviction petition on

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June 15, 2017 (ECF No. 86, p. 4; exhibit 105).2 He also argues that legal

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circumstances have changed because Montgomery v. Louisiana, 136 S. Ct. 718 (2016),

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See also, timeline of state, circuit and Supreme Court caselaw relevant to the Kazalyn instruction in this
court’s order dated September 27, 2016 (ECF No. 83).
In Byford v. State, 994 P.2d 700, 713 (Nev. 2000), the Supreme Court of Nevada concluded that the
“Kazalyn instruction” “blur[red] the distinction between first- and second-degree murder” by not sufficiently
distinguishing between the distinct elements of deliberation and premeditation.
In White v. Woodall, 134 S.Ct. 1697 (2014) – the United States Supreme Court held that federal courts may
extend Supreme Court rulings to new sets of facts on habeas review only if it is “beyond doubt” that the
ruling applies to a new set of facts. It is beyond doubt that a ruling applies to a new set of facts only if there
can be no “fairminded disagreement” on the question.
In Moore v. Helling, 763 F.3d 1011, 1021 (9th Cir. 2014), the Ninth Circuit determined that White v. Woodall
effectively overruled Babb. v. Lozowsky, 719 F.3d 1019, 1032-1033 (9th Cir. 2013), and held that, at least
before Bunkley v. Florida was decided in 2003, it was not an unreasonable application of clearly established
federal law not to apply Byford to convictions that were not final at the time that Byford was decided.
2 Exhibits referenced in this order are exhibits to Kieren’s motion for reconsideration, ECF No. 86, and are
found at ECF No. 87.

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and Welch v. U.S., 136 S. Ct. 1257 (2016) represent a change in the law that must

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allow Kieren to obtain the benefit of Byford on collateral review.

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In Montgomery, the Supreme Court concluded that Miller v. Alabama,3 which

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held that mandatory life without parole for juveniles violates the Eighth Amendment,

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announced a substantive rule of constitutional law, and therefore, must be applied

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retroactively by state and federal courts. 136 S. Ct. at 736, 727; see also, Welch, 136

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S. Ct. at 1265 (holding that its decision in Johnson4 that the residual clause of the

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federal Armed Career Criminal Act of 1984 was void for vagueness, announced a new

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substantive rule of constitutional law which, therefore, must be applied retroactively).5

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Kieren now argues that, under Montgomery, the Nevada Supreme Court must apply

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Nika/Byford retroactively.6
But respondents are correct that Kieren conflates new Supreme Court rules with

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new State court rules and conflates Teague with Bunkley. In fact, recognizing the

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problem that Nika/Byford constitutes a new state rule, not a new constitutional rule,

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Kieren frames the claim he wants to add to his petition as a Nika/Bunkley claim. In

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Bunkley v. Florida,7 the Supreme Court held that a change in state law must be applied

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retroactively in order to satisfy due process. Kieren tries to bootstrap a new

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constitutional rule onto his analysis by invoking Bunkley. But the new rule at issue for

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Kieren’s purposes, is Nika/Byford, a state rule or change of state law. Montgomery

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simply does not dictate that the Nevada Supreme Court is required to apply Nika/Byford

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567 U.S. 460, 465 (2012).
Johnson v. United States, 135 S.Ct. 2551 (2015).
5 Montgomery and Welch follow the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989).
Under Teague, generally, “new constitutional rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are announced.” Teague, 489 U.S. at 310. Teague
and its progeny recognize two categories of decisions that fall outside this general bar on retroactivity for
procedural rules. New substantive rules generally apply retroactively. Schriro v. Summerlin, 542 U.S. 348,
351 (2004); Teague, 489 U.S. at 307, 311. Also, new “‘watershed rules of criminal procedure,’” which are
procedural rules “implicating the fundamental fairness and accuracy of the criminal proceeding,” will also
have retroactive effect. Saffle v. Parks, 494 U.S. 484, 495 (1990); see Teague, 489 U.S. at 311–313.
6 In Nika v. State, 198 P.3d 839, 848-850 (Nev. 2008), the Supreme Court of Nevada held that Byford
announced a change in state law that applies to cases that were not final when Byford was decided.
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538 U.S. 835 (2003),

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retroactively for petitioners whose convictions became final before the Bunkley decision

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issued. Kieren’s argument is, therefore, unavailing.

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Kieren’s Kazalyn-instruction claim has been adjudicated on the merits several

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times, and White v. Woodall and Moore v. Helling continue to apply to such claims that

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pre-date Bunkley. Petitioner has not demonstrated that a change in legal or factual

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circumstances or an intervening change in controlling law warrant reconsideration of the

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denial of the motion to amend. Kieren’s motion for reconsideration is, therefore, denied.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF

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No. 86) is DENIED.

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DATED this 5th day of March, 2018.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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