Robert Ybarra, Jr. v. Timothy Filson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT YBARRA, JR., No. 13-17326

Petitioner-Appellant,

D.C. No.

v. 3:00-cv-00233-

GMN-VPC

TIMOTHY FILSON, Warden,

Respondent-Appellee.

ROBERT YBARRA, JR., No. 17-15793

Petitioner-Appellant,

D.C. No.

v. 3:00-cv-00233-

GMN-VPC

TIMOTHY FILSON, Warden; ADAM

PAUL LAXALT, Nevada Attorney

General,

Respondents-Appellees.

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, Chief Judge, Presiding

2 YBARRA V. FILSON

ROBERT YBARRA, JR., No. 17-71465

Petitioner,

v. OPINION

TIMOTHY FILSON, Warden; ADAM

PAUL LAXALT, Nevada Attorney

General,

Respondents.

Application to File Second or Successive Petition

under 28 U.S.C. § 2254

Argued and Submitted July 21, 2017

San Francisco, California

Filed September 1, 2017

Before: Barry G. Silverman, Richard C. Tallman,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Tallman

YBARRA V. FILSON 3

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

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 YBARRA V. FILSON

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.

COUNSEL

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.

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

YBARRA V. FILSON 5

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 . . . .”).

6 YBARRA V. FILSON

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

1

Ybarra filed his fifth state petition earlier this year. See infra

note 14.

YBARRA V. FILSON 7

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

Ybarra actually filed his third federal petition in 2000, but this

2

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

8 YBARRA V. FILSON

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

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.

YBARRA V. FILSON 9

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

5

The AAID was previously known as the American Association on

Mental Retardation (AAMR).

10 YBARRA V. FILSON

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

YBARRA V. FILSON 11

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.

7

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, 656 F.3d at 997. We did not reject that claim on the merits,

nor did we suggest that the district court was barred from considering a

proper Rule 60(b) motion. These issues were therefore not “decided

explicitly or by necessary implication,” and the district court did not

12 YBARRA V. FILSON

not a second or successive habeas petition subject to

28 U.S.C. § 2244(b).

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, 822 F.3d 482, 490 (9th Cir. 2016). Moreover, a

defendant cannot evade this requirement by simply calling

his petition a Rule 60(b) motion. United States v.

Washington, 653 F.3d 1057, 1060 (9th Cir. 2011).

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, 545 U.S. 524, 531–32 (2005).

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, 523 U.S. 637 (1998).

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,

483 F.3d 977, 981 (9th Cir. 2007) (citations omitted).

YBARRA V. FILSON 13

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,

455 U.S. 509, 520 (1982), his efforts to reinstate that claim

do not fall within the purview of § 2244 so as to strip the

district court of jurisdiction and categorically bar him “from

ever obtaining federal habeas review,” Martinez-Villareal,

523 U.S. at 645.

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.

14 YBARRA V. FILSON

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, 545 U.S. at 535).

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, 431 F.3d 1158,

1166 (9th Cir. 2005), we conclude that the district court erred

in its analysis under AEDPA. First, it overlooked 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 recent decision in

Brumfield v. Cain, 135 S. Ct. 2269 (2015). Second, it erred

when it refused to consider the Greenspan report. We

therefore vacate its order in Case No. 13-17326, and remand

for reconsideration.

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

YBARRA V. FILSON 15

adaptive behavior and [3] manifested during the

developmental period.” When the Nevada Supreme Court

issued its opinion 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, 134 S. Ct. 1986 (2014) (holding that a test

imposing a strict IQ score cutoff at 70 was unconstitutional).

It also explained that, to show adaptive deficits under Prong

2, a defendant must prove impairments “in at least two . . .

skills areas.” Id. at 274 n.6 (quoting DSM-IV, at 41).

Finally, under Prong 3, it held that the developmental period

is “the time before an individual reaches 18 years of age.”

Id. at 275–76 (“[T]he AAMR and the APA focus on the age

of 18 years . . . .”). In this way, Nevada law incorporated

clinical guidelines and diagnostic manuals well before the

United States Supreme Court held that “[t]he medical

community’s current standards . . . constrain[] . . . States’

leeway” to define intellectual disability. Moore, 137 S. Ct.

at 1053.

At the evidentiary hearing before the Nevada state

district court, two defense experts testified that Ybarra met

16 YBARRA V. FILSON

his burden of proof under all three prongs. 8 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

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

failed 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, 247 P.3d at 277–85.

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

Because we do not ourselves make a determination under AEDPA,

8

we do not recount the state court proceedings at length. But see Ybarra,

247 P.3d 269 (summarizing the relevant testimony and evidence).

YBARRA V. FILSON 17

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d).

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. 536 U.S. at 317 (citation omitted).

Significantly, Atkins “did not provide definitive procedural

or substantive guides” to determine who qualifies as

intellectually disabled. Bobby v. Bies, 556 U.S. 825, 831

(2009). And although Ybarra insists that the Nevada

Supreme Court unreasonably applied Atkins, he relies almost

exclusively on the Supreme Court’s subsequent, more

detailed decisions in Moore, Hall, and Brumfield. These

decisions might redefine and expand Atkins, 9 but they cannot

show that the Nevada Supreme Court applied Atkins in a way

that “was so lacking in justification that there was an error

well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011).

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

9

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.”).

18 YBARRA V. FILSON

the state court was not merely wrong, but actually

unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th

Cir. 2004). This standard is “difficult to meet,” Harrington,

562 U.S. at 102, but it is not impossible. In fact, the Supreme

Court recently offered helpful guidance as to how this

standard might be met in the Atkins context.

“Kevan Brumfield was sentenced to death for the 1993

murder of [an] off-duty Baton Rouge police officer . . . .”

Brumfield, 135 S. Ct. at 2273. He later sought relief from

his sentence under Atkins, but the Louisiana state court

refused to hold an evidentiary hearing because there was no

“reasonable ground” to suspect that he was intellectually

disabled. Id. at 2274. Brumfield then filed a federal habeas

petition, arguing that the Louisiana state court’s intellectual

disability determination was unreasonable under AEDPA.

The district court agreed, but the Fifth Circuit did not. The

Supreme Court then granted certiorari. Id. at 2275–76.

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, 247 P.3d at 273

(citing the same diagnostic manuals). But when the

Louisiana state court refused to hold an evidentiary hearing,

it made a number of statements that clearly contradicted

those same guidelines. The Supreme Court relied on these

contradictions to conclude that “the two underlying factual

determinations on which the trial court’s decision was

premised—that Brumfield’s IQ score was inconsistent with

a diagnosis of intellectual disability and that he had

presented no evidence of adaptive impairment,” were

YBARRA V. FILSON 19

unreasonable under § 2254(d)(2). Brumfield, 135 S. Ct. at

2276–77.

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

20 YBARRA V. FILSON

assessment when there are no test scores available from the

developmental period. 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, 764 F.3d 594, 610 (6th Cir. 2014)

(“[T]he courts strain the limits of reasonableness by rejecting

expert opinions based exclusively on the courts’ own

inexpert analysis.”).

The state argues that, even if the Nevada Supreme Court

was unreasonable with regard to its determination 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

10

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, 134 S. Ct. at 1990.

YBARRA V. FILSON 21

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

intellectual functioning.” Ybarra, 247 P.3d at 282. Again,

we are troubled by this statement. The relevant clinical

guidelines specify that “[t]he assessment of intellectual

functioning is a task that requires specialized professional

training.” AAMR-10, at 51. For this reason, although the

malingering determination was reasonable because it was

supported by expert testimony, the Prong 1 determination

was unreasonable to the extent that it was based on the

court’s lay perception that Ybarra did not “look like” a

disabled person. See Moore, 137 S. Ct. at 1051–52 (“Mild

levels of intellectual disability, although they may fall

outside [the] citizens’ consensus, nevertheless remain

intellectual disabilities.”).

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, 137 S. Ct. at 1053

(Roberts, C.J., dissenting) (arguing that a proper

determination under Prong 1 insulated an otherwise

improper intellectual disability determination).

Alternatively, Ybarra may be correct that lay stereotypes and

nonclinical factors infect the state court’s entire analysis,

thus rendering it unreasonable. Rather than passing on these

issues in the first instance, we leave the task to the district

court. We conclude only that, in light of Brumfield, the

22 YBARRA V. FILSON

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, 11 and we again

remand so that the district court can consider its effect in the

first instance.

1

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 Greenspan 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

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.

11

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, 246 F. App’x 519, 521 n.2 (9th Cir. 2007) (citing Earp,

431 F.3d at 1166).

YBARRA V. FILSON 23

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.

2

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, 501 U.S. at 806. In other words, we

essentially change the date, and possibly the author, of the

last reasoned opinion.

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

24 YBARRA V. FILSON

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 the

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 separate petitions with the

California Supreme Court—a petition for review, and an

YBARRA V. FILSON 25

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, 536 U.S. 214, 224–25

(2002) (noting that the original writ is interchangeable with

a petition for review in California). In this case, however,

the Greenspan report was attached to a motion seeking

reconsideration of an opinion affirming a decision by the

trial court. It was therefore, by all accounts, filed in violation

of the relevant procedural rules. See Nev. R. App. Proc. 10

(describing the record on appeal as excerpts from the record

below); Nev. R. App. Proc. 40(c) (specifying that rehearing

is only warranted when the court “overlooked or

misapprehended” a matter in the existing record).

But this only suggests that the Nevada 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

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

26 YBARRA V. FILSON

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., 901 P.2d 706, 707 (Nev.

1995) (declining “invitation to consider” evidence never

presented to the district court and denying motion for leave

to supplement the record); Alderson v. Gilmore, 13 Nev. 84,

84 (1878) (explaining that the court was unable to review

premium on good judgment, however, one’s adaptive

functioning deficits are most likely to become evident.

Motion for Stay Issuance of the Remittitur and to Reconsider Opinion at

14, Ybarra, 247 P.3d 269 (No. 52167).

YBARRA V. FILSON 27

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, 635 P.2d 276, 277 (Nev. 1981), we are

not ultimately persuaded that the Nevada Supreme Court is

incapable of considering additional material. For one thing,

the Nevada Rules of Appellate Procedure do not constrain

the inherent authority of the Nevada Supreme Court, which

is permitted to “suspend any provision of the[] rules” “for

good cause.” Nev. R. App. Proc. 2. Moreover, the Nevada

Supreme Court may well have special authority to overlook

technical defects in Atkins cases due to its legislative

mandate to determine whether a prior intellectual disability

determination “was correct.” Nev. Rev. Stat.

§ 177.055(2)(b) (2015). 13

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

whether the Greenspan report changes the outcome under

AEDPA. Instead, we simply vacate the order in Case No.

13-17326, and remand for reconsideration.

13

We acknowledge that this appeal does not come to us following

mandatory review under this provision, but we nevertheless find it

persuasive.

28 YBARRA V. FILSON

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, 136 S. Ct. 616 (2016).

We conclude that his arguments are without merit.

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, 536 U.S. 584 (2002),

when the Supreme Court held that Arizona’s sentencing

scheme was unconstitutional because it allowed a

“sentencing judge, sitting without a jury, to find an

aggravating circumstance necessary for imposition of the

death penalty.” Id. at 609. In Hurst, the Supreme Court once

again applied this principle to invalidate Florida’s capital

sentencing scheme.

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, 136 S. Ct. at 620 (citation omitted).

Florida argued that this scheme was proper because the

jury’s recommendation was entitled to “great weight.” Id.

(citation omitted). The Supreme Court disagreed. It

reiterated that “any fact on which the legislature conditions

an increase in the maximum punishment . . . [is an]

element,” and held that Florida’s scheme was

unconstitutional because it allowed a judge to determine

whether “sufficient aggravating circumstances exist [and

YBARRA V. FILSON 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, 32 P.3d 1277, 1285 (Nev.

2001). According to Ybarra, Hurst creates a new rule of

constitutional law, and establishes that both of these findings

are elements. Ybarra then argues that Nevada’s scheme is

unconstitutional because it does not require the “weighing

determination” to be made beyond a reasonable doubt.

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, 136 S. Ct. at 621–22 (“Like

Arizona at the time of Ring, Florida does not require the jury

to make the critical findings necessary to impose the death

penalty.”).

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

30 YBARRA V. FILSON

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 decision 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,

653 F.3d at 1060. But we agree that Ybarra’s Hurst-based

motion is clearly a disguised petition. Unlike his Atkins-

based motion, it does not seek to reinstate a claim that was

originally dismissed for “technical procedural reasons.”

Martinez-Villareal, 523 U.S. at 645. Instead, it seeks to set

aside a sentence based on an entirely “new claim.”

Gonzalez, 545 U.S. at 531.

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, 551 U.S. 930,

945–46 (2007) (holding that a petition raising a previously

unripe claim of incompetency was not a second or

successive petition under AEDPA). But this is not a

question of ripeness. Ybarra seeks relief based on Hurst,

which he claims establishes “a new rule of constitutional law

. . . that was previously unavailable.” 28 U.S.C.

§ 2244(b)(2)(A). AEDPA already establishes a procedure to

address this type of claim; and that procedure requires

Ybarra to obtain authorization to file a second or successive

habeas petition. Id. Ybarra cannot evade this requirement

by simply “disguis[ing]” his petition and calling it a Rule

60(b) motion. See Washington, 653 F.3d at 1060. We

YBARRA V. FILSON 31

therefore affirm the district court’s order in Case No. 17-

15793.

B

After he filed his improper motion, Ybarra also filed a

proper application for leave to file a second or successive

habeas petition. 14 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

petition satisfies the first ground because it relies on “a new

rule of constitutional law, made retroactive to cases on

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, 533 U.S. 656, 663

14

Ybarra filed a fifth state habeas petition raising his Hurst claim

one day before the end of the one-year statute of limitations established

in 28 U.S.C. § 2244(d)(1)(C). Because that petition remains pending via

an appeal, and because “[t]he time during which a properly filed

application for State post-conviction or other collateral review . . . is

pending” is tolled, his application is timely even though it was filed more

than a year after Hurst was decided. See Artuz v. Bennett, 531 U.S. 4, 9

(2000) (“[W]hether an application has been ‘properly filed’ is quite

separate from . . . whether the claims contained in the application are

meritorious and free of procedural bar.” (emphasis omitted)); see also

Carey, 536 U.S. at 219–20 (“[A]n application is pending as long as the

ordinary state collateral review process is in continuance—i.e., until the

completion of that process.” (citation and quotation marks omitted)).

32 YBARRA V. FILSON

(2001) (“[A] new rule is not ‘made retroactive to cases on

collateral review’ unless the Supreme Court holds it to be

retroactive” (quoting 28 U.S.C. § 2244(b)(2)(A))).

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, 282 F.3d 664, 668 (9th Cir. 2002). The

same logic applies here. Even if Hurst extends the

reasonable-doubt standard to the weighing determination, it

does not redefine capital murder or otherwise limit the

conduct rendering a defendant eligible for the death penalty.

YBARRA V. FILSON 33

Ybarra next argues that Hurst establishes a watershed

rule of criminal procedure because it reduces the risk of

condemning a defendant who is actually ineligible for the

death penalty due to countervailing mitigating

circumstances. He asserts that, without the reasonable-doubt

standard, accuracy in capital sentencing is “seriously

diminished.” Schriro v. Summerlin, 542 U.S. 348, 352

(2004) (quoting Teague, 489 U.S. at 313). In support, he

cites several instances where the Supreme Court held that

cases extending the reasonable-doubt standard applied

retroactively. See, e.g., Ivan V. v. City of New York, 407 U.S.

203, 204 (1972) (giving retroactive effect to In re Winship,

397 U.S. 358 (1970)); Hankerson v. North Carolina,

432 U.S. 233, 242 (1977) (giving retroactive effect to

Mullaney v. Wilbur, 421 U.S. 684 (1975)).

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, 542 U.S. at 355–56 (quoting Teague, 489 U.S. at

312). Similarly, we have already held that Apprendi is not a

watershed rule with regard to its holding that “any fact . . .

increas[ing] the penalty for a crime . . . must be . . . proved

beyond a reasonable doubt.” Sanchez-Cervantes, 282 F.3d

at 666–67 (quoting Apprendi, 530 U.S. at 490). We

concluded that this rule does “not rise to the level of

importance of” other rules extending the reasonable-doubt

standard because it “only affects the enhancement of a

defendant’s sentence once he or she has already been

convicted beyond a reasonable doubt.” Id. at 671.

34 YBARRA V. FILSON

If neither Ring nor Apprendi apply retroactively, we fail

to see why Hurst would apply retroactively. Like these

cases, the hypothetical rule established in Hurst involves

only a sentencing determination. Under Nevada law, the

prosecution must already prove both the elements of the

capital offense and at least one aggravating sentencing factor

beyond a reasonable doubt. See Lisle v. State, 351 P.3d 725,

731–32 (Nev. 2015). For this reason, Hurst does not

“overcome an aspect of the criminal trial that substantially

impairs its truth-finding function and so raises serious

questions about the accuracy of guilty verdicts[.]” Sanchez-

Cervantes, 282 F.3d at 671 (last emphasis added) (quoting

Hankerson, 432 U.S. at 243).

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 does 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

YBARRA V. FILSON 35

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

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.