Case Information
*3
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
,
The Nevada Supreme Court rejected Ybarra’s claim of
intellectual disability on the merits.
See Ybarra v. State
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
,
Background
This case has a complex аnd 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
,
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 [1] Ybarra filеd his fifth state petition earlier this year. See infra note 14.
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 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
*6
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
,
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 [2] Ybarra аctually filed his third federal petition in 2000, but this petition was amended in 2002 after he received assistance from the public defender.
[3] Section 175.554(5), enacted in 2015 in response to Atkins , provides that:
If a sentence of death is imposed and a prior
determination regarding intellectual disability has not
been made pursuant to NRS [§] 174.098, the defendant
may file a motion to set aside the penalty on the
grounds that the defendant is intellectually disabled. If
such a motion is filed, the court shall conduct a hearing
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
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.” 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 *7 on that issue in the manner set forth in NRS [§] 174.098.
[4] Rule 40(c) of the Nevada Rules of Appellate Procedure provides that “no point may be raised for the first time on rehearing,” and specifies that rehearing is proper:
When the court has overlooked or misapprehended a material fact in the record or a material question of law in the case, or . . . [w]hen the court has overlooked, misapplied or failed to consider a statute, procedural rule, regulation or decision directly controlling a dispositive issue in the case.
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 The AAID was previously known as the American Association on Mental Retardation (AAMR).
10 Y BARRA V . F ILSON 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
,
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 *9 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
[6]
Ybarra did not make this argument with regard to the other reports
.
Instead, the state argues that the district court violated either the
law of the case or the rule of mandate when it considered Ybarra’s
Atkins
-based motion. These objections are without merit. In our prior
decision, we decided that the district court did not err when it ordered
Ybarra to abandon his unexhausted claims, including his
Atkins
claim.
See Ybarra
,
AEDPA generally limits a defendant to one round of
federal habeas review and bars him from filing a second or
successive petition without authorization from
the
appropriate court of appeals. 28 U.S.C. § 2244(b)(3)(A). If
a defendant fails to obtain this authorization, a district court
lacks jurisdiction to consider his petition.
Rishor v.
Ferguson
,
To determine whether the district court had jurisdiction
to consider Ybarra’s motion, we must therefore determine
whether it is actually a disguised habeas petition. There is
no “bright-line rule for distinguishing between a bona fide
Rule 60(b) motion and a disguised second or successive
[petition].”
Id.
However, the Supreme Court has instructed
us that a motion raising an entirely “new claim,” or attacking
“the federal court’s resolution of a claim on the merits,” is
the latter.
Gonzalez v. Crosby
,
We conclude that Ybarra’s motion does neither of these
things. Instead, as the district court has already observed, it
is analogous to the motion at issue in
Stewart v. Martinez-
Villareal
,
The defendant in
Martinez-Villareal
originally filed a
federal habeas petition
that
included a claim of
incompetency under
Ford v. Wainwright
, 477 U.S. 399,
otherwise “vary” from our prior decree.
See United States v. Thrasher
,
409–10 (1986) (holding that the Eighth Amendment prohibits the execution of the mentally incompetent). The district court dismissed this claim as premature, explaining that it was not ripe because an execution was not scheduled, and ultimately entered a judgment denying relief on the remaining claims. Martinez-Villareal , 523 U.S. at 640. When the defendant’s execution warrant issued, he then filed a motion to set aside this judgment and reopen habeas proceedings so that he could pursue his Ford claim. Id .
The Supreme Court held that this motion was not a second or successive habeas petition under AEDPA. It observed that a Ford claim was included in the defendant’s original petition, but dismissed for “technical procedural reasons.” Id. at 645. It then concluded that such a “dismissal . . . [should not] bar the [defendant] from ever obtaining federal habeas review” of his claim. Id. at 644–45.
We agree that this case is sufficiently analogous. Like
the
Ford-
based motion in
Martinez-Villareal
, Ybarra’s
Atkins-
based motion does not raise an entirely new claim.
Instead, it seeks to revive an existing claim. And like the
Ford
claim, this claim was originally dismissed for
“technical procedural reasons.”
Id.
at 645. Therefore,
although Ybarra certainly “risk[ed] forfeiting” review of his
Atkins
claim when he abandoned it,
see Rose v. Lundy
For these reasons, the district court did not err when it concluded that it had jurisdiction to consider Ybarra’s Atkins- based Rule 60(b) motion. However, as explained below, it did err in its analysis concerning that motion.
II
This brings us to the primary issue on appeal. Under
Rule 60(b), a defendant may seek relief “from a final
judgment, order, or proceeding for . . . any . . . reason that
justifies relief.” Fed. R. Civ. P. 60(b)(6). To obtain relief
under this catchall provision, a defendant must first make a
threshold “showing of ‘extraordinary circumstances.’”
Towery v. Ryan
, 673 F.3d 933, 940 (9th Cir. 2012) (per
curiam) (quoting
Gonzalez
,
The district court reasonably held that, to show extraordinary circumstances in this case, Ybarra must show that it would not be futile to reopen habeas proceedings. It then held that Ybarra could not satisfy this requirement because the existing and unfavorable intellectual disability determination is entitled to deference under AEDPA.
Reviewing de novo,
see Earp v. Ornoski
,
A
The Nevada legislature responded to Atkins by enacting Nevada Revised Statutes § 174.098(7) (2015), which provides that a person is intellectually disabled if he suffers from “[1] significant subaverage general intellectual functioning which [2] exists concurrently with deficits in
Y BARRA V . F ILSON 15 adaptive behavior and [3] manifested during the developmental period.” When the Nevada Supreme Court issued its opiniоn in 2011, it explained that this “definition conforms to the clinical definitions espoused by . . . the American Association on Mental Retardation (AAMR) and the American Psychiatric Association (APA).” Ybarra 247 P.3d at 273–74. It then purported to rely on clinical guidelines issued by these associations, explaining that they “provide useful guidance in applying the [statutory] definition.” Id. at 274.
For example, it explained that, to show intellectual
deficits under Prong 1, a defendant must typically present a
valid IQ score between 70 and 75—which accounts for the
standard error of measurement.
Id.
(quoting American
Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders 41 (4th ed. 2000) (DSM-IV));
see also Hall v. Florida
,
At the evidentiary hearing before the Nevada state district court, two defense experts testified that Ybarra met his burden of proof under all three prongs. But a third expert, testifying for the state, disagreed. He opined that Ybarra was malingering during his IQ tests and failed to present any valid IQ scores. This expert relied on the lack of evidence under Prong 1 to conclude that Ybarra failed to *13 prove intellectual disability. He did not offer further testimony regarding Prongs 2 and 3, explaining that, “to the extent that you don’t have that first prong . . . these other prongs don’t matter.”
The Nevada state district court concluded that Ybarra
fаiled to prove intellectual disability and denied his motion
to strike the death penalty. It largely credited the state expert
and discredited the defense experts. However, the court did
not adopt the theory that, because Ybarra failed to present
credible evidence under Prong 1, the other prongs “don’t
matter.” Instead, it held that Ybarra failed to make a
showing under all three prongs—rejecting the unrebutted
defense testimony under Prongs 2 and 3. The Nevada
Supreme Court agreed, adopting a similar analysis in its own
opinion.
See Ybarra
,
The district court concluded that this determination is
entitled to AEDPA deference. Under AEDPA, a federal
court must defer to a state court’s adjudication of a claim
unless it “(1) resulted in 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 (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the
[8]
Because we do not ourselves make a determination under AEDPA,
we do not recount the state court proceedings at length.
But see Ybarra
As an initial matter, we agree that the intellectual
disability determination passes muster under § 2254(d)(1).
Atkins
held that the Eighth Amendment prohibits the
execution of the intellectually disabled, but left “the task of
developing appropriate ways to enforce [this] constitutional
restriction” to the States.
On the other hand, Ybarra plausibly argues that the Nevada Supreme Court made an unreasonable determination of fact under § 2254(d)(2). Under this subsection, we “may not second-guess a state court’s fact-finding process unless, after review of the state-court record, [we] determine[] that This is especially true with regard to Moore , which changed the course of the Supreme Court’s intellectual disability jurisprudence. See 137 S. Ct. at 1057–58 (Roberts, C.J., dissenting) (“Today’s decision departs from this Court’s precedents, followed in Atkins and Hall , establishing that the determination of what is cruel and unusual rests on a judicial judgment about societal standards of decency, not a medical assessment of clinical practice.”).
the state court was not merely wrong, but actually
unreasonable.”
Taylor v. Maddox
,
“Kevan Brumfield was sentenced to death for the 1993
murder of [an] off-duty Baton Rouge police officer . . . .”
Brumfield
,
Louisiana, like Nevada, relied on guidance from the
APA and the AAMR to define intellectual disability.
Compare Brumfield
, 135 S. Ct. at 2274 (citing American
Association of Mental Retardation, Mental Retardation:
Definition, Classification, and Systems of Supports (10th ed.
2002) (AAMR-10); DSM-IV);
with Ybarra
,
For example, the Louisiana court erroneously stated that an IQ score of 75 was inconsistent with intellectual deficits, even though “[t]he sources on which [it] relied in defining subaverage intelligence both describe a score of 75 as being consistent with such a diagnosis.” Id. at 2278 (citing AAMR-10, at 59; DSM-IV, at 41–42). It also disregarded evidence that Brumfield was antisocial on the ground that he had a personality disorder, which was improper because “an antisocial personality is not inconsistent with . . . adaptive impairment, or with intellectual disability more generally.” Id. at 2280 (citing DSM-IV, at 47; AAMR-10, at 172).
The Nevada Supreme Court made a number of comparable errors in this case. For example, it ignored evidence that Ybarra was bullied in school on the ground that it was irrelevant under Prong 2. The trial court initially expressed concern over the notion that “the victim [of bullying] . . . has the problem,” and the Nevada Supreme Court apparently agreed because it stated that evidence of bullying does “little to demonstrate adaptive behavior deficits.” Ybarra , 247 P.3d at 284. But the AAMR specifically lists “gullibility” and an inability to “avoid[] victimization” as examples of limited social adaptive skills. AAMR-10, at 42. Similarly, under Prong 3, the Nevada Supreme Court suggested that any diagnostic test conducted after the age of 18 was “of little value.” Ybarra , 247 P.3d at 283. But the AAMR specifically contemplates retrospective *16 20 Y BARRA V . F ILSON assessment when there are no test scores available from the developmental рeriod. See AAMR-10, at 93–94. [10]
It is true that the contradictory statements played a more
central role in the underlying decision in
Brumfield
. The
Louisiana state court refused to grant an evidentiary hearing
because it concluded there was no “reasonable ground” to
even suspect that Brumfield was intellectually disabled.
135 S. Ct. at 2274. This case might ordinarily be
distinguishable. We acknowledge that the Nevada Supreme
Court engaged in a lengthy and coherent analysis under
Prongs 2 and 3; and only made a few, relatively minor,
contradictory statements. In another case, we might find
these statements insignificant. But in this case, where the
only clinical experts to testify on Prongs 2 and 3 opined that
the prongs were satisfied, we find these statements troubling.
See Van Tran v. Colson
,
The state argues that, even if the Nevada Supreme Court
was unreasonable with regard to its dеtermination under
Prongs 2 and 3, its decision was insulated by a reasonable
determination under Prong 1. The state reminds us that a
clinical expert concluded that Ybarra was malingering. This
expert also specifically described Ybarra’s “bizarre”
performance on a number of tests, including a “complex
figure test” where his score was worse than that of an
We note that requiring individuals to provide formal test scores
from their developmental period would likely “creat[e] an unacceptable
risk that persons with intellectual disability will be executed” because
not everyone who is intellectually disabled receives formal testing at a
young age.
Cf. Hall
,
Alzheimer’s patient or a person with a “debilitating” or “severely horrible disease[].”
We agree that the malingering determination was
reasonable in light of this clinical expertise. But it is not
clear that the malingering determination was the basis for the
Nevada Supreme Court’s determination under Prong 1. The
court opined that “[t]he record as a whole . . . portrays Robert
Ybarra as a person who does not have significant subaverage
*17
intellectual functioning.”
Ybarra
,
The state may be correct that the malingering
determination constitutes an “independent basis” for the
intellectual disability determination, thus rendering it
reasonable under AEDPA.
Cf. Moore
,
district court erred when it overlooked a number of contradictory statements made by the Nevada Supreme Court.
B
We also conclude that the district court erred when it declined to consider the Greenspan report, and we again remand so that the district court can consider its effect in the first instance.
According to Pinholster , federal “review under § 2254(d)[] is limited to the record that was before the state court that adjudicated the claim on the merits.” 563 U.S. at 181. The district court concluded that Pinholster barred it from considering the Grеenspan report because, although that report may have been before the Nevada Supreme Court in 2012, it was not before the court in 2011
It is true that the Nevada Supreme Court first adjudicated
*18
Ybarra’s
Atkins
claim on the merits when it issued its
reasoned opinion in 2011. However, it also adjudicated the
claim by denying Ybarra’s motion for reconsideration in
2012. “Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding
that judgment or rejecting the same claim rest upon the same
ground.”
Ylst v. Nunnemaker
, 501 U.S. 797, 803 (1991).
Because the 2012 order is unexplained, we assume that it
rests upon the same rationale as the 2011 opinion.
Our review is de novo because the status of the Greenspan report
under
Pinholster
, which interprets AEDPA, is a question of law.
See
Gilley v. Morrow
,
Moreover, because the reasoned opinion rejects Ybarra’s Atkins claim on the merits, we must assume that the unexplained order does the same. It therefore constitutes an adjudication on the merits under the law of this circuit. Cf. Cannedy v. Adams , 706 F.3d 1148, 1156 (9th Cir. 2013) (holding that an unexplained order denying a petition for review was an adjudication on the merits).
Additionally, the order clearly states that the Nevada Supreme Court “considered [the Atkins -based] motion” but found “no cause to reconsider” its 2011 opinion. For this reason, even without the Ylst presumption, it is clear that the court rejected Ybarra’s Atkins claim on the merits in 2012.
This designation would ordinarily have little practical
effect. When we attribute an earlier rationale to an
unexplained order, we “look through” that order to the last
reasoned opinion.
Ylst
,
However, in rare instances, the record may have been “materially improved” between the issuance of the reasoned opinion and the unexplained order. Cannedy , 706 F.3d at 1156 n.3. In these instances, “confining our review to [the earlier] record would produce the anomalous result of upholding an erroneous decision . . . on a fuller record because an [earlier] decision was correct on a less-developed record.” Id .
In Cannedy , for example, the California Court of Appeal first rejected a claim of ineffective assistance of counsel in a reasoned opinion. Cannedy then filed a petition for review—along with a duplicative original petition—in the *19 24 Y BARRA V . F ILSON California Supreme Court. At this time, he also filed a supplemental declaration, in which he explained that his trial lawyer failed to contact a number of favorable witnesses. But the California Supreme Court declined review and denied the duplicative petition in an unexplained order. Id. at 1154–56.
Cannedy then filed a federal habeas petition. The district court granted relief, and we affirmed. When we conducted our review, we first assumed that the unexplained order qualified as an adjudication on the merits. Cannedy 706 F.3d at 1156 (citing Ylst , 501 U.S. at 803). We then looked through that order, and read the opinion of thе California Court of Appeal as if it were written by the California Supreme Court. We concluded that this opinion, although reasonable in light of the record before the California Court of Appeal, was unreasonable in light of the record before the California Supreme Court—which was “materially improved” by the supplemental declaration. Id. at 1156 n.3.
Ybarra argues that this case is the same as Cannedy . He observes that, like the supplemental declaration, the Greenspan report was attached to a motion seeking review and thus “before” the Nevada Supreme Court when it adjudicated his claim by issuing an unexplained order in 2012. He then asks us to treat the Greenspan report the same way as we treated the declaration in Cannedy —by asking whether the 2011 opinion was reasonable in light of the 2012 report.
We agree that
Cannedy
is analogous, but we also find it
distinguishable. The Cannedy declaration was submitted, at
least in part, “in accordance with state law.” 706 F.3d at
1156 n.3. Cannedy filed two sepаrate petitions with the
California Supreme Court—a petition for review, and an
*20
original habeas petition. The supplemental declaration was
proper with regard to the original petition because, in that
context, the California Supreme Court was not acting as a
court of review.
See Carey v. Saffold
,
But this only suggests that the Nevаda Supreme Court was authorized to ignore the Greenspan report, it does not establish that it did so. And although this is not as clear a case as was before us in Chambers v. McDaniel , 549 F.3d 1191 (9th Cir. 2008), where the order specified that the court “considered all the materials filed by the parties,” id. at 1198 (emphasis added), we hesitate to assume that the Nevada Supreme Court ignored the Greenspan report when it “considered” the motion to which it was attached. This is especially true where the motion included lengthy excerpts from that report. [12]
For example, the motion includes the following excerpt: [F]or individuals in the sub-category of “mild” [intellectual disability] (IQ 55 to 75), one can do many things of a “normal” nature, such as work, drive a car, live independently, be married, etc. Obviously there are areas of deficit but these may not be clearly evident under typical circumstances. In situations that put a We also find the differences between the two orders compelling. As discussed above, when the Nevada Supreme Court denied Ybarra’s petition for rehearing, it expressly struck the Warnick report from the docket. However, when it denied his motion for reconsideration, it did not strike the Greenspan report. Additionally, although Justice Cherry joined the first order “in the result only,” he joined the second order in full. Because the first order only accomplished two things—striking the Warnick report and denying the petition for rehearing—it is reasonable to conclude that Justice Cherry would have considered the Warnick report, and joined the second order in full because the court considered the Greenspan report.
Although these inferences may seem attenuated, the state offers no alternative explanation. Instead, it argues that the Nevada Supreme Court lacks discretion to expand the record on appeal in response to a motion for reconsideration. We are not convinced.
The state cites a number of decisions that appear to
support its position, but most of these are dated and do not
clearly hold that the court categorically lacks discretion to
supplement the record on appeal.
See, e.g.
,
Vacation
Village, Inc. v. Hitachi Am., Ltd.
,
Motion for Stay Issuance of the Remittitur and to Reconsider Opinion at
14,
Ybarra
,
findings and conclusions that the petitioner “neglected to
include” in his statement of the case). And although there
are cases that appear to provide more specific support for the
state’s position,
see, e.g.
,
Carson Ready Mix, Inc. v. First
Nat. Bank of Nevada
,
It may be true that the Greenspan report was not filed in accordance with Nevada law. But the state has failed to convince us that the Nevada Supreme Court lacks the authority to overlook these defects, and it has failed to convince us that the differences between the two orders are trivial. We therefore conclude that the Greenspan report was part of the record under Pinholster because it was not expressly stricken, and that the district court erred when it refused to consider it. Once again, we express no view as to *22 whether the Greenspan report changes the outcome under AEDPA. Instead, we simply vacate the order in Case No. 13-17326, and remand for reconsideration.
We acknowledge that this appeal does not come to us following mandatory review under this provision, but we nevertheless find it persuasive.
III
We now turn to the consolidated matters. In Case Nos.
17-15793 and 17-71465, Ybarra argues that he is entitled to
relief from his death sentence in light of the Supreme Court’s
recent decision in
Hurst v. Florida
,
In
Apprendi v. New Jersey
, 530 U.S. 466 (2000), the
Supreme Court held that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.”
Id.
at 490. This principle was extended to the capital
sentencing context in
Ring v. Arizona
,
Florida’s sentencing scheme was a hybrid one: A jury
would offer a recommendation regarding the death penalty,
but a judge would exercise his or her own “independent
judgment about the existence of aggravating and mitigating
factors” to determine whether the defendant was eligible for
the death penalty.
Hurst
,
Y BARRA V . F ILSON 29 whether] . . . there are insufficient mitigating circumstances to outweigh [those] aggravating circumstances.” Id. at 620– 22 (citations and quotation marks omitted).
Under Nevada’s capital sentencing scheme, “(1) the jury
must unanimously find, beyond a reasonable doubt, at least
one enumerated aggravating circumstance; and (2) each
juror must then individually determine that mitigating
circumstances, if any exist, do not outweigh the aggravating
circumstances.”
Servin v. State
,
We are highly skeptical of this argument. In our view,
the weighing determination is more akin to a sentence
enhancement than to an element of the capital offense. As
such, it is not clear that the Nevada sentencing scheme runs
afoul of
Hurst
. And even more fundamentally, it is not clear
that
Hurst
actually establishes a new rule of constitutional
law at all. Instead, it may be nothing more than a direct
application of
Ring. See Hurst
,
But for the sake of argument, we assume without deciding that Hurst creates a new rule; establishes that the “weighing determination” is an element; and renders the Nevada sentencing scheme unconstitutional. Nevertheless, even after making these generous assumptions, Ybarra cannot obtain relief under Hurst.
A
As with his Atkins claim, Ybarra first attempted to raise his Hurst claim by filing a Rule 60(b) motion. The district court denied this motion on the ground that it was a disguised and unauthorized second or successive habeas petition.
In Case No. 17-15793, we now “review the district
court’s dеcision to dismiss [Ybarra’s] Rule 60(b) motion as
an unauthorized second or successive . . . petition de novo.”
Jones v. Ryan
, 733 F.3d 825, 833 (9th Cir. 2013). As
explained above, there is no “bright-line rule for
distinguishing between a bona fide Rule 60(b) motion and a
disguised second or successive [petition].”
Washington
,
Ybarra argues that his motion is proper because it was
filed to pursue a claim that was not “ripe” when he filed his
original petition.
Cf. Panetti v. Quarterman
,
B
After he filed his improper motion, Ybarra also filed a proper application for leave to file a second or successive habeas petition. In Case No. 17-71465, we now consider and deny that application on the ground that Hurst does not apply retroactively to cases on collateral review.
We may grant leave to file a proposed second or
successive habeas petition “only if it presents a claim not
previously raised that satisfies one of the two grounds
articulated in § 2244(b)(2).”
Burton v. Stewart
, 549 U.S.
147, 153 (2007) (citations omitted). Ybarra argues that his
petitiоn satisfies the first ground because it relies on “a new
rule of constitutional law, made retroactive to cases on
*25
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2244(b)(2)(A). We note that this
provision has two components: A new rule must apply
retroactively, and the Supreme Court must
hold
that it
applies retroactively.
See Tyler v. Cain
,
A new rule of constitutional law does not usually apply retroactively. Teague v. Lane , 489 U.S. 288, 310 (1989). There are, however, two exceptions. First, a rule applies retroactively if it is a substantive rule which “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Id. at 311 (citation and quotation marks omitted). Second, a rule applies retroactively if it is a “watershed rule[] of criminal procedure.” Id.
Ybarra first argues that Hurst establishes a substantive rule by “exclud[ing] a class of individuals from a death sentence who would otherwise be found death-eligible based on a standard of proof less rigorous than the beyond-a- reasonable-doubt-standard.” In essence, he argues that the death penalty applies to a narrower range of conduct because the weighing determination now requires a higher level of proof.
Even
if
Hurst
establishes
that
the weighing
determination must be made beyond a reasonable doubt, this
rule is nothing more than an extension of
Apprendi
. We have
already held that
Apprendi
does not establish a substantive
rule because it does not “decriminalize[] drug possession or
drug conspiracies []or place[] such conduct beyond the scope
of the state’s authority to proscribe.”
United States v.
Sanchez-Cervantes
,
The Supreme Court has already held that
Ring
is not a
watershed rule with regard to its holding that a jury, as
opposed to a judge, must make the findings that render a
defendant eligible for the death penalty. It explained that
judicial factfinding does not result in “an ‘impermissibly
large risk’ of punishing conduct the law does not reach.”
Schriro
,
We acknowledge that this case could be decided on the more narrow ground that, even if Hurst applied retroactively, the Supreme Court has never held that it applies retroactively as required with regard to a second or successive petition. See Tyler , 533 U.S. at 663. But because we have already held that Apprendi dоes not apply retroactively, and because the Supreme Court has already held that Ring does not apply retroactively, we also conclude that Hurst does not apply retroactively. We therefore deny Ybarra’s application on the broader ground that Hurst does not apply retroactively at all—with regard to either initial or successive habeas petitions.
Conclusion
In this appeal, we do not decide whether Ybarra is intellectually disabled, nor do we decide whether the Nevada Supreme Court made a reasonable or an unreasonable determination of fact when it concluded that he is not. Instead, we decide only that the district court erred in its analysis under AEDPA. We therefore vacate its order in Case No. 13-17326, and remand for reconsideration in light of Brumfield and in light of the Greenspan report.
We agree that Ybarra’s Hurst- based Rule 60(b) motion is a disguised and unauthorized second or successive habeas petition. We therefore affirm the district court’s order denying that motion in Case No. 17-15793.
Finally, we hold that Hurst does not apply retroactively *28 and consequently deny Ybarra’s application for leave to file a second or successive habeas petition in Case No. 17- 71465.
VACATED and REMANDED in part; AFFIRMED in part; APPLICATION DENIED.