Filing 293

ORDER that petitioner to file and serve a brief by 1/21/2018 setting forth his position addressed on the remand of this case form the court of appeals; respondents to have 60 days to file and serve a responsive brief; petitioner shall have 30 days to file a reply. Signed by Chief Judge Gloria M. Navarro on 11/21/2017. (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, et al., 14 Respondents. 15 ) ) ) ) ) ) ) ) ) ) / 3:00-cv-0233-GMN-VPC ORDER 16 On September 1, 2017, the United States Court of Appeals for the Ninth Circuit issued a 17 decision vacating this court’s order denying petitioner Ybarra’s motion for relief from judgment 18 under Rule 60(b) of the Federal Rules of Civil Procedure. Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 19 2017). Ybarra’s Rule 60(b) motion sought to re-open his federal habeas proceedings to allow him to 20 add a claim based on Atkins v. Virginia, 536 U.S. 304 (2002), which held that the Eighth 21 Amendment prohibits the execution of intellectually disabled persons. ECF No. 176. This court 22 denied the motion upon concluding that Ybarra’s Atkins claim would be futile because this court 23 would be required to defer, under 28 U.S.C. § 2254(d),1 to the Nevada Supreme Court’s denial of the 24 claim. ECF No. 228. 25 26 1 Referred to in the court of appeals’ decision as the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Ybarra, 869 F.3d at 1019. 1 The court of appeals identified two discrete errors in this court’s AEDPA analysis: 2 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, ––– U.S. ––––, 135 S.Ct. 2269, 192 L.Ed.2d 356 (2015). Second, it erred when it refused to consider the Greenspan report. 3 4 5 Ybarra, 869 F.3d at 1023. 6 In relation to the first error, the court of appeals concluded that the Nevada Supreme Court’s 7 intellectual disability determination “passes muster under § 2254(d)(1).” Id. at. 1024. With respect 8 to § 2254(d)(2),2 however, the court of appeals determined that the Nevada Supreme Court made a 9 “number of contradictory statements” that this court “overlooked.” Id. at 1026-27. The court of 10 appeals was careful to point out that it reserved judgment “as to whether the Nevada Supreme 11 Court's intellectual disability determination was reasonable, in which case the district court should 12 again defer to it; or unreasonable, in which case the district court should ‘proceed to consider’ 13 Ybarra's Atkins claim de novo.” Id. at 1019 (citation omitted). 14 The “Greenspan report” refers to a report “authored by Dr. Stephen Greenspan, . . . who 15 criticized the state courts' analyses and argued that their opinions incorporated ‘questionable lay 16 stereotypes.’” Id. at 1020–21. Even though this report was not presented to the Nevada Supreme 17 Court until Ybarra filed a second request for the court to reconsider the denial of his Atkins claim, 18 the court of appeals held that it “was part of the [state court] record under Pinholster3 because it was 19 not expressly stricken.” Id. at 1030 (footnote added). Once again, the court or appeals reserved 20 judgment as to “whether the Greenspan report changes the outcome under AEDPA.” Id. Thus, that 21 issue is also before this court on remand. 22 23 2 24 Under § 2254(d)(2), the federal court does not defer to a state court adjudication of a claim that “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 25 3 Cullen v. Pinholster, 563 U.S. 170 (2011). 26 2 1 In light of the foregoing, the court will set a schedule for the parties to brief the issues to be 2 considered on remand. The briefs filed by the parties pursuant to this schedule should include any 3 requests by the parties for leave to conduct discovery and for evidentiary hearings. With respect to 4 the latter, the brief should specify what additional evidence the party seeks to present on the issue of 5 Ybarra’s alleged intellectual disability beyond that which is already included in the voluminous 6 record currently before the court. 7 IT IS THEREFORE ORDERED that petitioner shall have 60 days from the date of entry of 8 this order to file and serve a brief setting forth his position with respect to each of the issues to be 9 addressed on the remand of this case from the court of appeals. Thereafter, respondents shall have 10 60 days to file and serve a responsive brief setting forth their positions with regard to those issues. 11 After respondents file their responsive brief, petitioner shall have 30 days to file a reply. 12 DATED: November 21, 2017 13 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 3

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