Denise Dianna Buchanan v. SHERYL FOSTER, Warden;

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENISE DIANNA BUCHANAN,
Petitioner - Appellant,
v.
SHERYL FOSTER, Warden; et al.,
Respondents - Appellees.
No. 09-16578
D.C. No. 3:06-cv-00340-LRH-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted July 13, 2010
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior
District Judge. **
Denise Dianna Buchanan appeals the district court’s denial of her petition
for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. The parties are familiar with the facts of the case, so we
FILED
JUL 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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repeat them here only to the extent necessary to explain our decision. We review
de novo the district court’s denial of the habeas petition, see Koerner v. Grigas,
328 F.3d 1039, 1045 (9th Cir. 2003), and we affirm.
Buchanan’s petition is governed by the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA). Under AEDPA, a state prisoner is entitled to relief
if the state court adjudication of a claim led to “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 “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)(1), (2). “The relevant state court
determination for purposes of AEDPA review is the last reasoned state court
decision.” Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Here, we
review the Nevada Supreme Court’s decision to determine whether habeas relief is
available under AEDPA.
Buchanan alleges that the state trial court’s jury instruction on the definition
of first-degree murder, which first appeared in Kazalyn v. State, 825 P.2d 578
(Nev. 1992), deprived Buchanan of due process by relieving the state of its burden
to prove that the killing of her sons was both deliberate and premeditated.
Assuming the jury instruction error constituted a violation of Buchanan’s due

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process rights, Buchanan is not entitled to relief unless she can show that “‘the
error had a substantial and injurious effect or influence in determining the jury’s
verdict.’” Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). A “substantial and injurious effect”
exists when there is a “reasonable probability” that the jury would have arrived at a
different verdict had the proper instruction been given. See Clark v. Brown, 450
F.3d 898, 916 (9th Cir. 2006).
In Nevada, the element of deliberation requires “a dispassionate weighing
process and consideration of consequences before acting.” Byford v. State, 994
P.2d 700, 714 (Nev. 2000). “Circumstantial evidence may be considered and
provide sufficient evidence to infer” the element of deliberation. Leonard v. State,
17 P.3d 397, 411 (Nev. 2001).
The evidence of deliberation regarding these two crimes renders any jury
instruction error here harmless. Three of Buchanan’s very young children died
under similar circumstances over a five-year period, and the jury reasonably
rejected Buchanan’s defense in concluding that the latter two deaths were not
natural. The jury heard three different forensic pathologists testify that the
probable manner of death was asphyxiation by suffocation. The county coroner
testified of the statistical improbability or impossibility that John and Jacob died of

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SIDS. The jury heard testimony that the apnea monitors of both John and Jacob
were turned off when they died. There were inconsistencies in Buchanan’s
recitation of the events surrounding the deaths of John and Jacob. For example,
after Jacob’s death, Buchanan told the police that she had turned off Jacob’s
monitor around 7 a.m., but the monitor’s internal record indicated that it had been
turned off at 3:56 a.m. Numerous witnesses testified of Buchanan’s lack of
remorse in the aftermath of her children’s deaths. In light of the evidence
presented at trial, we conclude that the state court’s decision that the Kazalyn
instruction error was harmless was neither contrary to nor an unreasonable
application of Supreme Court harmless error precedent. See Inthavong v.
Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005).
Buchanan also presented two uncertified issues in her opening brief, alleging
that there was insufficient evidence to sustain her conviction beyond a reasonable
doubt and that the prosecution in bad faith destroyed exculpatory evidence. We
deny Buchanan’s request to expand the certificate of appealability because she has
not made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
AFFIRMED.

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