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Ybarra v. Filson

United States Court of Appeals, Ninth Circuit

September 1, 2017

Robert Ybarra, Jr., Petitioner-Appellant,
v.
Timothy Filson, Warden, Respondent-Appellee. Robert Ybarra, Jr., Petitioner-Appellant,
v.
Timothy Filson, Warden; Adam Paul Laxalt, Nevada Attorney General, Respondents-Appellees. Robert Ybarra, Jr., Petitioner,
v.
Timothy Filson, Warden; Adam Paul Laxalt, Nevada Attorney General, Respondents.

          Argued and Submitted July 21, 2017 San Francisco, California

         Appeal 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

         Application to File Second or Successive Petition under 28 U.S.C. § 2254

          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.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The 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 Hurst.

         Ybarra 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).

         The 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.

         The 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.

          OPINION

          TALLMAN, Circuit Judge.

         On 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.

         There 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)).

         The 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.

         To be 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 . . . .").

         On the 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.

         Background

         This 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.

         Ybarra 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 petitions).[1]

         All 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, [2] he again brought several unexhausted claims-including a claim of intellectual disability under Atkins.

         The 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 (2000)).

         Ybarra 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).[3] 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.

         But 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.

         The 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."[4] 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 Warnick.

         Only six of the seven justices joined this order in full. Justice Cherry wrote separately to "concur in the result only."

         Ybarra 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), [5] who 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 medical history.

         The 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 full.

         Having 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 motion.

         The 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).

         Ybarra 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 Atkins.

         We 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.[6] 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. § 2254(d)).

         We 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."

         Now, 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 decision.

         I

         But 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, [7] we agree that this motion is ...


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