Melanie A. Ochs v. State of Nevada;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELANIE A. OCHS,
Petitioner-Appellant,
v.
STATE OF NEVADA; et al.,
Respondents-Appellees.
No. 21-16698
D.C. No.
2:16-cv-00982-JCM-DJA
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 17, 2022
San Francisco, California
Before: LINN,** RAWLINSON, and HURWITZ, Circuit Judges.
Melanie Ochs appeals the district court’s dismissal of her 28 U.S.C. § 2254
habeas corpus petition. We review the district court’s decision de novo, Vosgien v.
Persson, 742 F.3d 1131, 1134 (9th Cir. 2014), and may not grant relief unless the
underlying state court decision was “contrary to, or involved an unreasonable
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
FILED
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and reverse.
1. Ochs was convicted in Nevada state court of the first-degree murder of her
foster son, BBC. The jury was instructed on premediated first-degree murder, first-
degree felony murder, and second-degree felony murder. The district court correctly
held that Instruction 10, which defined the predicate felony on the second theory,
used the wrong definition of “child abuse.” The first-degree felony murder statute,
Nev. Rev. Stat. § 200.030(6)(b), defines “child abuse” as “physical injury of a
nonaccidental nature to a child,” but Instruction 10, which was apparently based on
a definition in a separate statute, Nev. Rev. Stat. § 200.508(1), stated:
“Child abuse” is defined as a person who willfully causes a child who
is less than 18 years of age to suffer unjustifiable physical pain or
mental suffering as a result of abuse or neglect or to place a child in a
situation where the child may suffer physical pain or mental suffering
as a result.
Mere “neglect” cannot serve as a predicate felony for first-degree felony murder,
Labastida v. State, 986 P.2d 443, 446 (Nev. 1999) (per curiam), but second-degree
felony murder can be predicated on a violation of § 200.508(1), Ramirez v. State,
235 P.3d 619, 623–24 (Nev. 2010). A separate and somewhat different instruction
about the predicate crime for second-degree felony murder was given, so there can
be no doubt that Instruction 10, which was given among the instructions concerning

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first-degree murder, was meant to guide the jury when considering first-degree
felony murder. Moreover, the instruction omits the phrase “of abuse or neglect” at
the end of the first sentence and could therefore allow a conviction for “plac[ing] a
child in a situation where the child may suffer physical pain or mental suffering,”
conduct that would not constitute child abuse under § 200.030(6)(b).
It is well established that the Due Process Clause is violated when the jury is
given an instruction that relieves the State of its burden to prove every element of an
offense beyond a reasonable doubt. See Carella v. California, 491 U.S. 263, 265
(1989); Sandstrom v. Montana, 442 U.S. 510, 520, 523 (1979). Instruction 10
allowed the jury to return a conviction without finding all the elements of first-degree
felony murder, and the district court therefore correctly found that it was improper.
The issue is not, as the state court assumed, whether the instructions as a whole
contained all the elements of the various crimes but whether they allowed the jury
to convict Ochs of first-degree felony murder without finding all the elements of that
offense. Carella, 491 U.S. at 265; Sandstrom, 442 U.S. at 520; see also Labastida,
986 P.2d at 446.
2. After finding no reversible error in Instruction 10, the Nevada Supreme
Court stated: “Furthermore, Ochs has failed to show prejudice. See Rose v. State,
86 Nev. 555, 558, 471 P.2d 262, 264 (1970).” Because Rose does not deal with
constitutional error—or error at all—we do not view its citation as an application of

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federal law, but rather simply as support for the state court’s erroneous conclusion
that the instructions were not constitutionally deficient.1 A federal court can only
grant habeas relief if the trial court’s error had a “substantial and injurious effect or
influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). “There
must be more than a reasonable possibility that the error was harmful.” Davis v.
Ayala, 576 U.S. 257, 267–68 (2015) (cleaned up).
“More than a reasonable possibility” of harmful error is present here. The
central issue at trial was whether BBC’s death was accidental or caused by “child
abuse.” Expert evidence and testimony was presented by each party on that issue,
and it was the focus of each party’s closing argument. Instruction 10’s definition of
child abuse, therefore, went to the heart of the case. But Instruction 10 conflated the
definition of the predicate felony for first-degree felony murder (“child abuse”) with
that for second-degree murder (“neglect”) and therefore permitted a guilty verdict
for first-degree felony murder even if the jury believed that Ochs had only been
neglectful. In addition, Instruction 10 could have permitted a finding of first-degree
murder for placing BBC in a situation where he might suffer physical pain or mental
suffering, which was what Ochs said occurred: she claimed that she placed BBC on
1 If the Nevada Supreme Court meant to find harmless error under Chapman v.
California, 386 U.S. 18 (1967), it unreasonably applied established federal law,
which requires the State to prove beyond a reasonable doubt that the constitutional
error was harmless. Id. at 23–24.

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a washing machine, became distracted, and he fell and suffered the fatal injury. We
therefore are left with “grave doubt” whether the instructional error “had substantial
and injurious effect or influence in determining the jury’s verdict.” Davis, 576 U.S.
at 267–68 (cleaned up). We reverse and instruct the district court to grant the writ
unless Ochs is retried.
REVERSED.

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