Filing 279

ORDER that Petitioner's Motion for Relief from Judgment Pursuant to Rule 60(b) ECF No. 271 is DENIED; a certificate of appealability is DENIED with respect to this decision; Petitioner's Motion for Extension of Time ECF No. 277 is GRANTED nunc pro tunc. Signed by Chief Judge Gloria M. Navarro on 03/17/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 ROBERT YBARRA, JR., 11 Petitioner, 12 vs. 13 TIMOTHY FILSON,1 et al., 14 Respondents. 15 16 ) ) ) ) ) ) ) ) ) ) / 3:00-cv-0233-GMN-VPC ORDER Petitioner Ybarra is a Nevada prisoner sentenced to death. On October 31, 2006, this court 17 entered a final judgment denying Ybarra’s petition for writ of habeas corpus under 28 U.S.C. § 2254. 18 ECF No. 146. The United States Court of Appeals for the Ninth Circuit affirmed that judgment. 19 ECF No. 167. The United States Supreme Court denied Ybarra’s petition for writ of certiorari. ECF 20 No. 189. 21 While that appeal was pending, Ybarra filed a motion for relief from judgment under Rule 22 60(b) of the Federal Rules of Civil Procedure. ECF No. 176. The motion was premised on Atkins v. 23 Virginia, 536 U.S. 304 (2002), which held that the Eighth Amendment prohibits a death sentence for 24 25 26 1 Timothy Filson, current warden of Ely State Prison, is substituted as respondent in place of his predecessor Renee Baker. See Fed. R. Civ. P. 25(d) (providing that a public “officer’s successor is automatically substituted as a party” when his or her predecessor “ceases to hold office while the action is pending”). 1 persons who are intellectually disabled. This court denied the motion (ECF No. 228), and Ybarra’s 2 appeal of that decision remains pending before the Ninth Circuit. 3 Now before the court is another Rule 60(b) motion. ECF No. 271. With the current motion, 4 Ybarra argues that his death sentence is unconstitutional in light of the Supreme Court’s decision in 5 Hurst v. Florida, 136 S.Ct. 616 (2016). 6 In Hurst, the Court held that Florida's capital sentencing scheme violates the Sixth 7 Amendment right to a jury trial because, under the scheme, the jury renders an advisory verdict but 8 the judge makes the ultimate sentencing determination. 136 S.Ct. at 624. In reaching that holding, 9 the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which held that any fact necessary for 10 the imposition of the death penalty must be found by a jury, not a judge. 536 U.S. at 589. Ybarra 11 argues this court’s judgment denying habeas relief must be set aside because this court and the Ninth 12 Circuit engaged in judicial fact-finding that, under Hurst, must be conducted by a jury. 13 Rule 60(b) entitles the moving party to relief from judgment on several grounds, including 14 the catch-all category “any other reason justifying relief from the operation of the judgment.” Fed. R. 15 Civ. P. 60(b)(6). Because Ybarra seeks relief under subsection (b)(6), he must make a showing of 16 “extraordinary circumstances,” which “will rarely occur in the habeas context.” Gonzalez v. Crosby, 17 545 U.S. 524, 535 (2005). 18 Rule 60(b) applies to habeas proceedings, but only in conformity with AEDPA,2 including 19 the limits on successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez, 545 U.S. at 20 529. If a Rule 60(b) motion seeks to add a new ground for relief or attack this court's previous 21 resolution of a claim on the merits, it is, in substance, a successive habeas petition subject to the 22 requirements of 28 U.S.C. § 2244(b). Id. at 531. If, however, the motion “attacks, not the substance 23 of the federal court's resolution of a claim on the merits, but some defect in the integrity of the 24 federal habeas proceedings,” the motion is not a successive habeas petition. Id. at 532. 25 2 The Antiterrorism and Effective Death Penalty Act. 26 2 1 Ybarra’s motion clearly falls in the former category. Accordingly, this court is not permitted 2 to address the merits of Ybarra’s Hurst-based claim until Ybarra obtains authorization from the court 3 of appeals pursuant to 28 U.S.C. § 2244(b)(3). 4 Ybarra argues that his motion is not a successive petition because his appeal is still pending 5 before the Ninth Circuit. As noted above, however, only the appeal of this court’s denial of Atkins 6 relief remains pending. The portion of this court’s disposition that Ybarra challenges with his 7 current Rule 60(b) motion has been affirmed by the Ninth Circuit, and his petition for writ of 8 certiorari has been denied by the United States Supreme Court. 9 Moreover, Ybarra does not cite to any controlling authority for the proposition that the 10 pendency of his appeal excuses him from obtaining permission from the court of appeals to raise a 11 new claim or re-litigate an old one. While a Second Circuit case arguably supports Ybarra’s position 12 (Whab v. United States, 408 F.3d 116 (2nd Cir. 2005)), opposing cases from other circuits are more 13 persuasive. See Ochoa v. Sirmons, 485 F.3d 538, 541 (10th Cir. 2007) (holding that no controlling 14 authority “suggests that whether a Rule 60(b) motion or other procedural vehicle may be used to 15 circumvent § 2244(b) depends on the incidental fact that an appeal is or is not pending from the 16 underlying habeas proceeding”) and Phillips v. United States, 668 F.3d 433, 435 (7th Cir. 2012) 17 (“Nothing in the language of § 2244 or § 2255 suggests that time-and-number limits are irrelevant as 18 long as a prisoner keeps his initial request alive through motions, appeals, and petitions.”). 19 Ybarra also argues that, even if § 2244 does apply, he is still entitled to relief because § 20 2244(b)(2)(A) permits him to pursue a claim that “relies on a new rule of constitutional law made 21 retroactive to cases on collateral review by the Supreme Court that was previously unavailable.” 22 That provisions does not, however, provide a basis for this court to grant Ybarra’s motion. Setting 23 aside the absence of a decision from the Supreme Court making Hurst retroactive,3 the determination 24 25 3 The Court has held that Ring, the case on which Hurst is premised, applies only prospectively. Schriro v. Summerlin, 542 U.S. 348, 358 (2004). 26 3 1 under § 2244(b)(2)(A) is to be made by the court of appeals, not this court. See 28 U.S.C. § 2 2244(b)(3). 3 Based on the foregoing, this court must deny Ybarra’s motion for relief under Rule 60(b). 4 In the event Ybarra chooses to appeal this decision, this court denies a certificate of 5 6 appealability (COA). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a 7 substantial showing of the denial of a constitutional right." With respect to claims rejected on the 8 merits, a petitioner "must demonstrate that reasonable jurists would find the district court's 9 assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 10 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA 11 will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the 12 denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id. 13 The issue of whether Ybarra’s Rule 60(b) motion should be treated as a successive petition 14 under Gonzalez v. Crosby is not debatable among reasonable jurists and, therefore, does not warrant 15 the issuance of a COA. 16 17 18 19 20 21 22 IT IS THEREFORE ORDERED that petitioner's motion for relief from judgment pursuant to Rule 60(b) (ECF No. 271) is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED with respect to this decision. IT IS FURTHER ORDERED that petitioner's motion for extension of time (ECF No. 277) is GRANTED nunc pro tunc as of February 8, 2017. DATED: March 17, 2017 23 24 UNITED STATES DISTRICT JUDGE 25 26 4

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