and Submitted July 21, 2017 San Francisco, California
from the United States District Court for the District of
Nevada D.C. No. 3:00-cv-00233-GMN-VPC Gloria M. Navarro,
Chief Judge, Presiding
to File Second or Successive Petition under 28 U.S.C. §
Randolph M. Fiedler (argued) and Michael Pescetta, Assistant
Federal Public Defenders; Rene L. Valladares, Federal Public
Defender; Office of the Federal Public Defender, Las Vegas,
Nevada; for Petitioner-Appellant.
Jeffrey M. Conner (argued), Assistant Solicitor General; Adam
Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Respondents-Appellees.
Before: Barry G. Silverman, Richard C. Tallman, and Richard
R. Clifton, Circuit Judges.
Corpus / Death Penalty
panel (1) vacated the district court's order denying
Nevada state prisoner Robert Ybarra's motion under
Fed.R.Civ.P. 60(b) to reopen his habeas corpus proceedings
challenging his death sentence based on Atkins v.
Virginia, 536 U.S. 304 (2002), and remanded for
reconsideration; (2) affirmed the district court's order
denying Ybarra's Rule 60(b) motion raising a claim based
on Hurst v. Florida, 136 S.Ct. 616 (2016), which
invalidated Florida's capital sentencing scheme; and (3)
denied Ybarra's application for leave to file a second or
successive habeas petition raising a claim based on
claims that he is categorically exempt from the death penalty
because he is intellectually disabled. The panel held that
Ybarra's Atkins-based Rule 60(b) motion was not
a disguised second or successive habeas petition, and that
the district court therefore did not err in concluding that
it had jurisdiction to consider it. Reviewing de novo, the
panel held that the district court erred in its AEDPA
analysis of the Atkins-based motion by overlooking a
number of instances where the Nevada Supreme Court
contradicted the very clinical guidelines that it purported
to apply, which is especially problematic in light of the
decision in Bromfield v. Cain, 135 S.Ct. 2269
(2015), and by refusing to consider a doctor's report
concluding that Ybarra was intellectually disabled, which was
part of the record under Cullen v. Pinholster, 563
U.S. 170 (2011).
panel held that the Ybarra's Hurst-based Rule
60(b) motion was a disguised and unauthorized second or
successive habeas petition, and therefore affirmed the
district court's order denying the motion.
panel held that Hurst does not apply retroactively,
and therefore denied Ybarra's properly-filed application
for leave to file a second or successive habeas petition in
which he argues, based on Hurst, that Nevada's
capital sentencing scheme is unconstitutional.
TALLMAN, Circuit Judge.
September 28, 1979, Robert Ybarra kidnapped, beat, and
sexually assaulted sixteen-year-old Nancy Griffith in rural
White Pine County, Nevada. He then doused her in gasoline,
set her on fire, and left her to die a slow and agonizing
death. At trial, he pled not guilty by reason of insanity.
But the jury rejected his defense, found him guilty, and
determined that his crime was sufficiently aggravated to
warrant the death penalty.
is no question that Ybarra's crime falls within the
"narrow category of the most serious crimes" that
would ordinarily render him eligible for the death penalty.
Atkins v. Virginia, 536 U.S. 304, 319 (2002). But
Ybarra now claims he is categorically exempt from the death
penalty because he is intellectually disabled. See Moore
v. Texas, 137 S.Ct. 1039, 1051 (2017) ("States may
not execute anyone in 'the entire category of
[intellectually disabled] offenders.'" (alteration
in original) (quoting Roper v. Simmons, 543 U.S.
551, 563 (2005)).
Nevada Supreme Court rejected Ybarra's claim of
intellectual disability on the merits. See Ybarra v.
State, 247 P.3d 269 (Nev. 2011). The district court then
deferred to its determination under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). For reasons
explained below, we vacate its order in Case No. 13-17326,
and remand for reconsideration.
clear, we express no view as to whether the Nevada Supreme
Court's intellectual disability determination was
reasonable, in which case the district court should again
defer to it; or unreasonable, in which case the district
court should "proceed to consider" Ybarra's
Atkins claim de novo. See Maxwell v. Roe,
628 F.3d 486, 494-95 (9th Cir. 2010). Instead, we give the
district court an opportunity to consider a number of issues
in the first instance. See Badea v. Cox, 931 F.2d
573, 575 n.2 (9th Cir. 1991) ("[W]e see no reason to
decide ab initio issues that the district court has
not had an opportunity to consider . . . .").
other hand, we conclude that the arguments raised in the
consolidated matters, which rely on Hurst v.
Florida, 136 S.Ct. 616 (2016), are without merit. We
therefore affirm the district court's order dismissing
that claim in Case No. 17-15793, and we deny Ybarra's
application for leave to file a second or successive habeas
petition in Case No. 17-71465.
case has a complex and protracted history spanning nearly
thirty-eight years. It involves several rounds of habeas
review, a variety of motions, and a number of obscure
procedural issues. Although we have tried to limit our
discussion to the procedural matters immediately relevant on
appeal, even our summary is lengthy.
was convicted and sentenced to death in 1981. After his
conviction and sentence were affirmed on direct appeal,
see Ybarra v. State, 679 P.2d 797 (Nev. 1984), he
sought relief on collateral review. In total, he filed five
state and three federal habeas corpus petitions. See
Ybarra v. McDaniel, 656 F.3d 984, 988-90 (9th Cir. 2011)
(describing the first four state and all three federal
three federal petitions were defective due to failure to
exhaust. The first was filed in 1987 and dismissed without
prejudice in 1988; and the second was filed in 1989 and
dismissed without prejudice in 1993. Id. At this
time, the federal district court warned Ybarra that it would
not tolerate another defective petition, and that this would
be his "last opportunity to return to state court to
exhaust all grounds for relief." Id. at 997.
Nevertheless, when Ybarra filed his third federal petition in
2002,  he again brought several unexhausted
claims-including a claim of intellectual disability under
district court cited its prior admonition, ordered Ybarra to
abandon his unexhausted claims, and considered the remaining
claims on the merits. It then denied habeas relief in 2006,
and we affirmed in 2011. Notably, we denied a certificate of
appealability (COA) as to whether the district court abused
its discretion by ordering Ybarra to abandon his unexhausted
claims. We concluded that the issue was not reasonably
debatable in light of the prior warning in 1993. Id.
(quoting Slack v. McDaniel, 529 U.S. 473, 484
also pursued his Atkins claim by filing his fourth
state habeas petition. This petition was originally dismissed
on procedural grounds, but the Nevada Supreme Court reversed
and remanded with instructions to proceed in accordance with
Nevada Revised Statutes § 175.554(5)
(2015). The Nevada state district court then
conducted a two-day evidentiary hearing, concluded that
Ybarra failed to prove intellectual disability, and denied
his motion to strike the death penalty in 2008. The Nevada
Supreme Court affirmed in a reasoned opinion in 2011. See
Ybarra, 247 P.3d 269.
Ybarra filed a petition for rehearing. In support, he
attached a supplemental report by Dr. Erin Warnick, who
evaluated Ybarra in 2001. That report, dated April 11, 2011,
also summarized a report by Dr. Jonathan Mack, who evaluated
Ybarra in 2010. Both doctors opined that Ybarra was
intellectually disabled, but neither report was ever
presented at the trial court's evidentiary hearing.
Nevada Supreme Court denied the petition on June 29, 2011.
Its order read, in its entirety, "Rehearing denied. NRAP
40(c). It is so ORDERED." It also contained a footnote,
which specified that:
In resolving this petition for rehearing, we have not
considered any evidence that was not presented to the
district court in the first instance. We strike the document
attached to the petition for rehearing authored by Dr. Erin
six of the seven justices joined this order in full. Justice
Cherry wrote separately to "concur in the result
then filed a motion for reconsideration before the state
supreme court, and again attached a report that was never
presented to the state district court. This report was
authored by Dr. Stephen Greenspan, the most-cited authority
in the 2002 and 2010 diagnostic manuals of the American
Association on Intellectual Disabilities (AAID),
criticized the state courts' analyses and argued that
their opinions incorporated "questionable lay
stereotypes." Dr. Greenspan also concluded that Ybarra
was intellectually disabled after examining him, interviewing
several of his family members, and reviewing his academic and
Nevada Supreme Court "considered" but denied the
motion. Significantly, it did not strike the Greenspan report
as it had done with the Warnick report; and all seven
justices, including Justice Cherry, joined this order in
fully exhausted his state court remedies, Ybarra once again
returned to federal court. He filed a motion asking the
district court to set aside its prior judgment in accordance
with Federal Rule of Civil Procedure 60(b), reopen habeas
proceedings, and allow him to re-allege his
previously-abandoned Atkins claim. Both the
Greenspan report and the Mack report were attached to this
district court denied the motion on the merits. It
acknowledged that Ybarra's "circumstances [were]
unique and therefore weigh[ed] in favor of Rule 60(b) relief,
" but concluded that additional habeas proceedings
"would be futile" because the state court's
intellectual disability determination is entitled to
deference under AEDPA. The district court did not consider
either the Mack report or the Greenspan report when it made
this determination. It noted that these reports were not part
of the record in 2011, when the Nevada Supreme Court issued
its reasoned opinion, and concluded that it was therefore
barred from considering them under Cullen v.
Pinholster, 563 U.S. 170 (2011).
then filed a motion to alter or amend the order denying his
Atkins-based Rule 60(b) motion. He argued that the
district court committed clear error and made a futility
determination that was manifestly unjust when it refused to
consider the attached reports. See Dixon v. Wallowa
County, 336 F.3d 1013, 1022 (9th Cir. 2003) (describing
the circumstances warranting relief under Federal Rule of
Civil Procedure 59(e)). The district court rejected
Ybarra's arguments related to the excluded reports, but
it granted a COA as to:
Whether [it] erred in deferring, under 28 U.S.C. §
2254(d), to the state court's finding that [Ybarra] is
not intellectually disabled as contemplated by
first heard argument on this question in June 2016. At that
time, Ybarra again argued that the district court should have
considered the Greenspan report. He insisted that the Nevada
Supreme Court "adjudicated" his Atkins
claim on the merits when it denied his motion for
reconsideration in 2012, and that the Greenspan report was
"before" the court at this time. See
Pinholster, 563 U.S. at 181-82 (quoting 28 U.S.C. §
concluded that this issue was reasonably debatable and
"deserve[d] encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We
therefore granted a second COA as to whether the district
court misapplied Pinholster and "improperly
declined to consider the Greenspan report."
over a year later, after receiving several rounds of
supplemental briefs and after consolidating this appeal with
two other matters, see infra Part III, we issue our
first, we must address a jurisdictional issue related to the
unique posture of this case. As discussed above, Ybarra
sought review of his Atkins claim by filing a motion
to reopen habeas proceedings. Although the state did not
pursue the argument on appeal,  we agree that this motion is ...