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Dixon v. Williams

United States Court of Appeals, Ninth Circuit

April 30, 2014

FREDERIC K. DIXON, Petitioner-Appellant,
v.
BRIAN E. WILLIAMS, SR.; ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents-Appellees

 Argued and Submitted, March 10, 2014, San Francisco, California

Page 1028

Appeal from the United States District Court for the District of Nevada. D.C. No. 2:09-cv-00066-PMP-PAL. Philip M. Pro, Senior District Judge, Presiding.

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.

Before: John T. Noonan, Sidney R. Thomas, and Marsha S. Berzon, Circuit Judges.

OPINION

Page 1029

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

Page 1030

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 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 self-defense force or means that might cause 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 ...

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