Ryan Oshun MOORE, Petitioner–Appellee, v. Don HELLING; Nevada Attorney General, Respondents–Appellants.
Petitioner–Appellee Ryan Oshun Moore was convicted in Nevada state court of first degree murder, defined in relevant part as a “willful, deliberate and premeditated killing.” Nev.Rev.Stat. § 200.030(1)(a) (2013), and other crimes. The trial court gave the first degree murder instruction commonly used in Nevada at the time, known as the “Kazalyn instruction,”1 which did not separately define the terms “willful,” “deliberate,” and “premeditated.” In 2000, after Moore was convicted, but before his conviction became final, the Nevada Supreme Court invalidated the Kazalyn instruction and replaced it with an instruction separately defining the terms “willful,” “deliberate,” and “premeditated.” See Byford v. State, 994 P.2d 700, 713–15 (Nev.2000). The Nevada Supreme Court subsequently determined that Byford represented a change in Nevada law and was applicable to cases pending on direct appeal when Byford was decided. See Nika v. State, 198 P.3d 839, 859 (Nev.2008) (citing Byford, 994 P.2d at 713–15).
Moore argued on direct appeal that his conviction was invalid due to the trial court's use of the Kazalyn instruction, but his appeal was denied. Moore v. State, 27 P.3d 447, 450 n.16 (Nev.2001). Moore then filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Nevada, contending, among other things, that his due process rights were violated by the trial court's use of the Kazalyn instruction. The district court granted Moore's petition, Moore v. Helling, 861 F.Supp.2d 1195, 1207–08 (D.Nev.2012), and Respondents–Appellants Don Helling, Warden, and the Nevada Attorney General (the “State”) appealed.
On March 24, 2014, we filed a Memorandum Disposition affirming the district court's grant of Moore's petition. Moore v. Helling, 2014 WL 1152588 (9th Cir. Mar. 24, 2014). In that disposition, we relied substantially on Babb v. Lozowsky, 719 F.3d 1019 (9th Cir.2013), which also involved a habeas claim by a petitioner who was convicted of first degree murder under the Kazalyn instruction and whose conviction was not final when Byford was decided. Moore, 2014 WL 1152588, at *1 (citing Babb, 719 F.3d at 1032–33). Babb held that the Nevada state court's failure to apply the new Byford instruction in such circumstances was an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). Babb, 719 F.3d at 1032–33. We held in Moore, following Babb as controlling Circuit authority, that the Nevada state court's failure to apply the new Byford instruction to Moore's appeal was an unreasonable application of clearly established federal law. Moore, 2014 WL 1152588, at *1.
On April 7, 2014, the State filed a petition for panel rehearing and rehearing en banc. Dkt. # 50. While the State's petition for rehearing was pending, the U.S. Supreme Court decided White v. Woodall, 134 S.Ct. 1697 (2014), which clarified § 2254(d)(1)'s “unreasonable application” clause. In light of Woodall, we granted the State's petition for panel rehearing and withdrew our March 24, 2014 Memorandum Disposition. Dkt. # 52. We now reverse the district court's judgment and remand. We hold that Babb's application of § 2254(d)(1) is “clearly irreconcilable” with Woodall, as applied to petitioners in Moore's position and is therefore no longer controlling in this case. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.2003) (en banc). Under Woodall, we conclude that the state court did not unreasonably apply clearly established federal law in denying Moore's Byford claim and, for that reason, reverse the district court's grant of Moore's petition for a writ of habeas corpus.
Moore participated in a robbery during which his codefendant, Charles Morris (“Morris”), shot and killed Branson Clark (“Clark”). Moore, Morris, and two others planned to rob the occupants of an apartment in Reno, Nevada. The four planned to wait outside the apartment building until someone entered the unit they intended to rob, at which point they would enter the unit and steal money and drugs that they believed the occupants of the unit possessed.
While the four were waiting outside the apartment, one of them observed Clark enter the unit carrying bags. At that point, they decided to rob Clark when he left the unit. When Clark exited the unit, Morris followed Clark around the apartment building, and Moore followed Morris. While Moore was following Morris, he saw Morris aim his gun and then, apparently when Morris was no longer in view, heard four gunshots. Moore then rounded the corner of the building, saw Morris running, and took off running himself.
Clark, who was a delivery driver at a local restaurant and went to the apartment complex to deliver a food order, was killed. His wounds were consistent with rifle shots, and there were two weapons recovered at the scene, an assault rifle and a semiautomatic pistol, both of which belonged to Moore. After the robbery, Moore gave a lengthy statement to the police, in which he admitted to his involvement in the robbery and described the details explained above, but claimed that he did not shoot Clark. The State charged Moore with first degree murder, robbery, and conspiracy to commit robbery.
The prosecution asserted four theories of first degree murder: premeditated and deliberate murder by means of violence to a person; felony murder; aiding and abetting another in premeditated and deliberate murder; and premeditated and deliberate murder as a result of a conspiracy to commit robbery. As to premeditated and deliberate murder by means of violence to a person, the trial court gave the Kazalyn instruction. On September 24, 1999, the jury returned a general verdict in which it convicted him of first degree murder, robbery, and conspiracy.
In 2000, after Moore was convicted but before his conviction became final, the Nevada Supreme Court decided Byford, which invalidated the Kazalyn instruction. The Nevada Supreme Court concluded that the instruction improperly blurred the distinction between first and second degree murder by failing to provide an independent definition of “deliberation,” which is required for first, but not second, degree murder. Byford, 994 P.2d at 713. It therefore set forth new instructions to be used for first degree murder based on a willful, deliberate, and premeditated killing, which defined each of those three terms separately. Id. at 714. Eight years later, the Nevada Supreme Court determined that Byford represented a change in Nevada law that narrowed the scope of criminal conduct constituting first degree murder and, for that reason, was applicable to cases pending on direct appeal when Byford was decided. Nika, 198 P.3d at 849–50.
Moore's appeal was pending when Byford was decided. In his direct appeal, he argued, in relevant part, that his first degree murder conviction should be reversed due to the trial court's use of the Kazalyn instruction. The Nevada Supreme Court rejected the Byford claim in a footnote. Moore, 27 P.3d at 450 n.16. In his federal habeas petition, Moore again raised the Byford claim, arguing that the use of the Kazalyn instruction violated his due process rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. The district court granted Moore relief on this ground, Moore, 861 F.Supp.2d at 1207–08, and the State appealed.
This Court reviews a district court's decision to grant or deny a habeas petition de novo. Aguilar v. Woodford, 725 F.3d 970, 972 (9th Cir.2013). Under 28 U.S.C. § 2254(d), a habeas petitioner whose claim was adjudicated on the merits in state court may obtain relief in federal court only if the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). “Section 2254(d)(1)'s clearly established phrase refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citation and internal quotation marks omitted).
As we explained in the now-withdrawn memorandum disposition, under Babb, Moore would have been entitled to relief pursuant to § 2254(d)(1). We now hold, however, that in light of the Supreme Court's recent decision in Woodall, Babb no longer controls the outcome of this case. After Woodall, we can no longer conclude that the Nevada court's failure to apply Byford to Moore's conviction was contrary to, or an unreasonable application of, clearly established federal law under § 2254(d)(1).
Before Woodall, this Circuit recognized two ways in which a petitioner could show an unreasonable application of federal law under § 2254(d)(1): first, “ ‘if the state court identifie[d] the correct governing legal rule ․ but unreasonably applie[d] it to the facts' “ of the case; and second, “ ‘if the state court either unreasonably extend[ed] a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuse[d] to extend that principle to a new context where it should apply.’ “ Walker v. Martel, 709 F.3d 925, 939 (9th Cir.2013) (quoting Williams v. Taylor, 529 U.S. 362, 407 (2000) (emphasis added)).2 Woodall calls this last option the “unreasonable-refusal-to-extend concept” and circumscribes its use. See Woodall, 134 S.Ct. at 1705–07. According to Woodall, the Court never adopted or endorsed the unreasonable-refusal-to-extend rule (or at least never granted habeas relief on that basis). The Court explained that, correctly interpreted, “[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” Id. at 1706. The Court noted that “ ‘if a habeas court must extend a rationale before it can apply to the facts at hand,’ then by definition the rationale was not ‘clearly established at the time of the state-court decision.’ “ Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
Woodall acknowledged that § 2254(d)(1) does not require an “ ‘identical factual pattern before a legal rule must be applied.’ “ Id. (quoting Panetti v. Quarterman, 551 U.S. 930, 953 (2007)). But, it explained, a state court violates clearly established federal law by refusing to extend a principle to a new set of facts only if it is “ ‘beyond doubt’ “ that the principle applies to the new situation. Id. (quoting Yarborough, 541 U.S. at 666). Therefore, “relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on the question.” Id . at 1706–07 (quoting Harrington v. Richter, 131 S.Ct. 770, 787 (2011)).
In Woodall, the Sixth Circuit had concluded that it was clearly established under a trio of Supreme Court cases that it was a violation of a defendant's Fifth Amendment right to fail to give a no-adverse-inference instruction at the penalty phase of a capital trial. 134 S.Ct. at 1702 (citing Woodall v. Simpson, 685 F.3d 574, 579 (6th Cir.2012)). The Court rejected this conclusion, however, because no case had specifically held as much and the trio of cases on which the Sixth Circuit relied was amenable to multiple, reasonable interpretations. Id. at 1702–05. One case on which the Sixth Circuit relied held that a no-adverse-inference instruction is required at the guilt phase of a capital trial, id. at 1702 (citing Carter v. Kentucky, 450 U.S. 288, 294–95, 300 (1981)); another held that a defendant's Fifth Amendment right against self-incrimination is violated by the penalty-phase introduction of the results of an involuntary, un-Mirandized pretrial psychiatric evaluation, id. (citing Estelle v. Smith, 451 U.S. 454, 456–57 & n.1 (1981)); and the third disapproved of a trial judge drawing an “adverse inference from the defendant's silence at sentencing ‘with regard to factual determinations respecting the circumstances and details of the crime,’ “ id. (quoting Mitchell v. United States, 526 U.S. 314, 327–30 (1999)). None of these cases, however, specifically held that the Fifth Amendment required a penalty-phase no-adverse-inference instruction. Nonetheless, the Sixth Circuit held that the principle was clearly established because “ ‘reading Carter, Estelle, and Mitchell together, the only reasonable conclusion is that’ a no-adverse-inference instruction was required at the penalty phase.” Id. (quoting Woodall, 685 F.3d at 579).
The Court rejected this holding because, in its view, there were other reasonable conclusions to be drawn from Carter, Estelle, and Mitchell. Id. at 1702–03. The Woodall Court specifically focused on Mitchell, because that was the case that was the most directly relevant to the question before the Court. It concluded that Mitchell left open the possibility that some adverse inferences were permissible at the penalty phase of a capital trial. The Court explained that while Mitchell might preclude a penalty-phase adverse inference as to guilt or the circumstances of the crime, it might be permissible under this precedent to draw from the defendant's silence conclusions about his lack of remorse or acceptance of responsibility. Id. at 1703 (noting that Mitchell separately reserved the question of whether silence may be used to assess remorse or acceptance of responsibility). The Court held that the Sixth Circuit's analysis “disregard[ed] perfectly reasonable interpretations of Estelle and Mitchell and hence contravene [d] § 2254(d)'s deferential standard of review.” Id.
Woodall thus limits federal courts' ability to extend Supreme Court rulings to new sets of facts on habeas review. Under Woodall, courts may so extend Supreme Court rulings only if it is “beyond doubt” that the rulings apply to the new situation or set of facts. Id. at 1706. Woodall further held that 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,” id. (quoting Harrington, 131 S.Ct. at 787)—in other words, when the one—the only—reasonable inference to be drawn from the Court's precedent is that the principle applies to the new circumstance. According to Woodall, if there are any other reasonable inferences that can be drawn from the relevant precedent, the principle is not clearly established under § 2254(d). See id. at 1702–05.
The issue is whether Babb relied on the unreasonable-refusal-to-extend rule the Court rejected in Woodall. In Babb, we were presented with the question of whether federal law requires that a change in state law, namely, the rejection of the Kazalyn instruction, must be applied to a conviction pending on direct appeal at the time of the change. 719 F.3d at 1023–25, 1032–33. There, we relied on § 2254(d)(1)'s unreasonable-refusal-to-extend concept to hold that the Nevada Supreme Court unreasonably applied clearly established federal law when it failed to apply the change announced in Byford to defendant Latisha Babb's conviction, which was pending on appeal when Byford was decided. 719 F.3d at 1032–33 (citing Williams, 529 U.S. at 407, for the proposition that an unreasonable refusal to extend constitutes an unreasonable application of Supreme Court precedent under § 2254(d)(1)).
When the state court ruled on Babb's Byford claim in 2001, no Supreme Court case had yet directly addressed the application of changes in state law to cases pending on appeal. However, we found the principle that changes in state law must be applied to convictions pending on direct appeal when the law is changed clearly established based on a pair of cases dealing with similar questions. The first of these, Griffith v. Kentucky, 479 U.S. 314 (1987), held that newly declared constitutional rules must be applied to convictions that are not final when the new rule is announced. Id . at 328.
We recognized in Babb that Griffith alone did not clearly establish the principle that changes in state law apply to cases pending on direct appeal, largely because Griffith dealt with a change in federal constitutional law. See Babb, 719 F.3d at 1032 (“Griffith alone would not be sufficient to invalidate Babb's conviction because the change at issue was a change in state law.” (citing Murtishaw v. Woodford, 255 F.3d 926, 955–56 (9th Cir.2001) (holding that Griffith applies only to new constitutional rules))). However, in Babb we found the principle clearly established based on subsequent authority that extended the Griffith principle to developments in state law. See id. Specifically, in Fiore v. White, 531 U.S. 225 (2001) (“Fiore II ”), the Court reversed a defendant's conviction when, after the conviction became final, the state supreme court clarified that the conduct in which the defendant engaged did not constitute a violation of the statute under which he was convicted. Id. at 228–29. There, the defendant, William Fiore, was convicted under a Pennsylvania statute that prohibited operating a waste facility without a permit. Although Fiore had a permit to operate a waste facility, he was convicted based on evidence that he deviated from the permit's terms. Id. at 226–27.
When Fiore's conviction became final, lower courts in Pennsylvania were divided over whether a defendant could be convicted of operating a waste disposal facility under these circumstances. Id.; see also Fiore v. White, 528 U.S. 23, 28 (1999) (“Fiore I ”). After his conviction became final, the Pennsylvania Supreme Court concluded that the statute did not apply to defendants who, like Fiore, possessed a permit but deviated from its terms. Fiore II, 531 U.S. at 227 (citing Commonwealth v. Scarpone, 634 A.2d 1109, 1112 (Pa.1993)). The Pennsylvania Supreme Court later stated, in response to a certification of the question by the Court, see Fiore I, 528 U.S. at 29, that this interpretation represented a clarification of state law and described the law as it had existed at the time Fiore's conviction became final. Fiore II, 531 U.S. at 228. Fiore was thus convicted based on conduct that the “criminal statute, as properly interpreted, [did] not prohibit.” Id. Therefore, the Court concluded that the conviction violated the federal Due Process Clause.
We held in Babb that, after Griffith and Fiore II, it was clearly established federal law that some changes to state law are applicable to cases pending on appeal when the new state law is announced. 719 F.3d at 1032–33. Babb thus concluded that it was unreasonable under Griffith and Fiore II for the state court to fail to apply Byford to Babb's conviction. Id. We were aided in reaching this conclusion by Bunkley v. Florida, 538 U.S. 835 (2003), which was decided after the state court ruled on Babb's Byford claim. See id. at 836–37. Bunkley directed the lower court to determine whether a potentially exonerating change in state law had occurred before the defendant's conviction became final, and held that the state court was required to apply that change to the defendant's conviction if it found in the affirmative.
Because Bunkley post-dated the Nevada Supreme Court's decision on Babb's Byford claim, we did not (and could not) rely on it as clearly establishing the principle that changes in state law apply to cases pending on direct appeal when the law is changed. See Andrade, 538 U.S. at 71. However, we further concluded that Bunkley confirmed the principles underlying Fiore II and Griffith. We concluded in Babb that Bunkley “indicated that failing to apply a potentially exonerating change in the law to a conviction which was not final at the time of the change would have the same effect as failing to apply a clarification of the law.” 719 F.3d at 1031–32. We explained that “[o]ne principle underlying Griffith is that it is a violation of due process to affirm a conviction ‘when the new ruling was that a trial court lacked authority to convict a criminal defendant in the first place.’ “ Id. (quoting Griffith, 479 U.S. at 324). We held that “[t]his principle would necessarily apply to a change in the definition of the elements of mens rea for first degree murder”; therefore, that the state court unreasonably applied clearly established law when it failed to apply Byford to Babb's conviction. Id.
We did not, however, have the benefit of Woodall when we made that determination. Babb's conclusion that Griffith and Fiore II sufficiently established the rule we applied in Babb cannot survive Woodall. Neither Griffith nor Fiore II involved the application of a post-conviction change in state law to a pending conviction: Griffith involved a change to a constitutional rule, Griffith, 479 U.S. at 316, and Fiore II involved a clarification that articulated state law as it had always existed, Fiore II, 531 U.S. at 228. Woodall prohibits relief under § 2254(d) if there can be “fairminded disagreement” on the question of whether changes in state law apply to cases pending on direct review when the law was changed. Woodall, 134 S.Ct. at 1706–07 (quoting Harrington, 131 S.Ct. at 787). We conclude that such disagreement is possible.
We have previously held that Griffith does not, by itself, extend to changes in state law. Babb, 719 F.3d at 1032; Murtishaw, 255 F.3d at 956 (“Griffith requires retroactive application only of new constitutional rules of criminal procedure[.] It does not require retroactive application of every new state-declared common law rule.” (internal citation and quotation marks omitted)). Combining Griffith and Fiore II, as we did in Babb, does not eliminate fairminded disagreement.
It is reasonable to interpret Fiore II as establishing that changes in state law must be applied to convictions that are pending on appeal when the change is announced. The Court in Fiore II considered whether the interpretation of the state law at issue properly articulated the law “when Fiore's conviction became final.” 531 U.S. at 226 (emphasis added). The Court certified a question to the Pennsylvania Supreme Court that focused on the state of the law when Fiore's conviction became final:
Does the interpretation of Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993), set forth in [Scarpone ], state the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final?
Fiore I, 528 U.S. at 29 (emphasis added). When the Pennsylvania Supreme Court replied that the subsequent interpretation articulated the state of the law when Fiore's conviction became final, the Court held that the state court was required to apply the interpretation to his conviction. Fiore II, 531 U.S. at 228–29.
Significantly, Fiore II did not speak in terms of a change or a clarification, but only in terms of the status of law when Fiore's conviction became final. Fiore II thus can be read as standing for the simple proposition that the reviewing court is required to apply the law as it existed when the defendant's conviction became final. Because Byford was the controlling law when Babb's conviction became final, the failure to use the Byford instruction would be contrary to Fiore II and entitle Babb to relief under § 2254(d)(1)—even though Fiore II dealt with a clarification in law and Byford represented a change in law.
We cannot say, however, that this is the only reasonable interpretation of Fiore II. The above analysis requires us to look past Fiore II's specific holding and consider the principles underlying the Court's decision, given that Fiore II did not directly deal with the effect of a change in state law. A fairminded jurist could conclude that this alone takes the case outside of § 2254(d)(1)'s purview. See Andrade, 538 U.S. at 71. In other words, a fairminded jurist could conclude that because Fiore II did not specifically hold that changes in state law apply to convictions pending on appeal, Fiore II cannot clearly establish the principle sufficient to warrant relief under § 2254(d)(1), even if the principles underlying Fiore II supported this conclusion. See id.
Woodall drew just such a distinction between the holding of a Supreme Court case and the principles underlying that holding, noting that the holding of a case is the only aspect of that decision relevant to relief under § 2254(d). See 134 S.Ct. at 1704 n.4. In Woodall, the dissent interpreted the holding of Estelle, on which the Sixth Circuit relied, more broadly than did the majority. As noted above, Estelle dealt with the penalty-phase introduction of an un-Mirandized psychiatric evaluation. Estelle, 451 U.S. at 456. The Woodall dissent concluded that in Estelle the Court “held that ‘so far as the protection of the Fifth Amendment privilege is concerned,’ it could ‘discern no basis to distinguish between the guilt and penalty phases' of a defendant's ‘capital murder trial.’ “ Woodall, 134 S.Ct. at 1707 (Breyer, J., dissenting) (quoting Estelle, 451U.S. at 462–63). The majority, however, rejected this broader interpretation of Estelle's holding. In the majority's view, Estelle held only “that the defendant's Fifth Amendment ‘rights were abridged by the State's introduction of’ a pretrial psychiatric evaluation that was administered without the preliminary warning required by Miranda [ ].” Id. at 1704 n.4 (quoting Estelle, 451 U.S. at 473).
Here, a fairminded jurist could narrowly interpret Fiore II's holding to conclude that because Fiore II specifically addressed only the effect of clarifications, its holding applied only to clarifications in state law. After the Pennsylvania Supreme Court replied to the Court's certification in Fiore I, stating that Scarpone represented a clarification to state law, the only question before the Court was whether that clarification applied to Fiore's conviction. Fiore II, 531 U.S. at 228. And the Court held that it did. Id. at 228–29. A fairminded jurist could therefore conclude that Fiore II narrowly held that clarifications in state law apply retroactively to the date of the defendant's conviction, to the extent that clarification stated the correct interpretation of the law at the date the conviction became final.3 Because Fiore II only specifically addressed clarification of law, a fairminded jurist could conclude that it applies only to clarifications for purposes of § 2254(d)(1).
A fairminded jurist also could conclude that a change of law might differ in substance from a clarification of law. In other contexts, we treat changes in law differently than we treat clarifications. See, e.g., ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 691 (9th Cir.2000) (Congressional acts that change the law require a retroactivity analysis, but Congressional acts that merely clarify existing law do not); United States v. Johns, 5 F .3d 1267, 1269 (9th Cir.1993) (clarifications to the U.S. Sentencing Guidelines apply retroactively to the date of sentencing, but changes might not). A fairminded jurist could conclude that a change in state law is not the same as a clarification to state law—or at least that we cannot necessarily assume that the Court meant to include changes in law when it discussed clarifications. It would thus be reasonable to interpret Fiore II as addressing only the effect of clarifications of state law. Under this reasonable interpretation of Fiore II, the case does not clearly establish that changes in state law apply to pending convictions, even though clarifications of state law do.
We therefore conclude that Babb's reasoning “disregards perfectly reasonable interpretations of [Griffith ] and [Fiore II ] and hence contravenes § 2254(d)'s deferential standard of review.” Woodall, 134 S.Ct. at 1704. We do not aim to cover the universe of fairminded interpretations of Fiore II and Griffith, nor do we comment on what we believe to be the correct interpretation of these cases. See Woodall, 134 S.Ct. at 1703 (noting that it was not necessary to determine the correct interpretation of the cases on which the lower court relied in granting habeas relief, but only to determine whether there could be fairminded disagreement as to their proper interpretation). Because there are multiple, reasonable interpretations of Fiore II, the case cannot serve as the foundation for the clearly established principle that changes in state law apply to pending convictions under § 2254(d)(1). See Woodall, 134 S.Ct. at 1705–06. And we have already determined that Griffith cannot serve this function. See Babb, 719 F.3d at 1032.
We note that we do not decide today whether Bunkley clearly established that changes in state law apply to cases pending on direct appeal. Bunkley might have demonstrated that the logical next step from Griffith and Fiore II was to hold that changes to state law apply to cases pending on direct appeal when the law is changed, but, under Woodall, that is insufficient to warrant federal habeas relief under § 2254(d)(1) because before Bunkley the Supreme Court had not yet taken that step. See Woodall, 134 S.Ct. at 1707 (noting that even if the lower court's interpretation was the “logical next step” from existing precedent, a principle is not clearly established under § 2254(d)(1) until the Court actually takes that step). In any event, Bunkley is not relevant to Babb because it post-dated the relevant state court decision in that case.
We express no opinion as to whether Babb remains good law, after Woodall, with respect to defendants whose convictions became final after Bunkley was decided. We conclude only that Woodall overruled Babb only as to its holding that the state court's failure to apply the Byford instruction to Babb's conviction, which pre-dated Bunkley, was contrary to clearly established federal law. Even after Woodall, claims by defendants whose Byford claims postdated Bunkley might remain viable, and we express no opinion on those claims.
In sum, we hold that Woodall's clarification of the unreasonable-refusal-to-extend rule is “clearly irreconcilable” with Babb's conclusion that the Nevada Supreme Court unreasonably applied Supreme Court precedent by failing to apply a change in state law to Babb's pending conviction. See Miller, 335 F.3d at 893. Woodall thus “effectively overruled” Babb with respect to petitioners for whom, like Babb, the relevant state court decision pre-dated Bunkley. For those convictions, we are no longer bound by Babb. Id.
Moore was convicted in 1999. His conviction became final—and the Nevada Supreme Court issued its relevant decision—in 2001, upon the denial of his direct appeal. Because there can be fairminded disagreement regarding whether Griffith and Fiore II apply to post-conviction changes in state law, the Nevada Supreme Court did not unreasonably apply clearly established federal law when it declined to apply the Byford instruction to Moore's case. See Woodall, 134 S.Ct. at 1706.
For the reasons discussed above, we reverse the district court's grant of Moore's petition for a writ of habeas corpus and remand with directions to enter judgment for the State, denying the petition.
REVERSED and REMANDED.
1. Kazalyn v. State, 825 P.2d 578 (Nev.1992).
2. Other circuits were in accord. See, e.g., Allen v. Chandler, 555 F.3d 596, 602 (7th Cir.2009); Green v. French, 143 F.3d 865, 869–70 (4th Cir.1998).
3. There is some ambiguity in the Court's jurisprudence over whether application of a new rule or interpretation of law to pending cases requires giving that new rule or interpretation “retroactive” effect. Some decisions suggest that retroactivity is at play. See, e.g., Griffith, 479 U.S. at 328 (“We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final ․“ (emphasis added)). Others, however, indicate otherwise. See, e.g ., Bunkley, 538 U.S. at 840 (“ ‘[R]etroactivity is not at issue’ if the [new interpretation] ․ is ‘a correct statement of the law when [a defendant's] conviction became final.” (emphasis added)). This ambiguity, however, only reinforces our conclusion that Babb's application of Fiore II to post-conviction changes in state law is not beyond any “fairminded disagreement.”
TASHIMA, Circuit Judge: