United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
On October 8, 2013, this court entered an order denying petitioner Ybarra's motion for relief from judgment pursuant to Rule60(b)(6) of the Federal Rules of Civil Procedure. ECF No. 228 (referred to herein as the "October 8 order"). On November 5, 2013, Ybarra filed, pursuant to Rule 59(e), a motion to alter or amend that order. ECF No. 229. For the reasons set forth below, that motion shall be denied with respect to the court's decision to deny relief from judgment. The motion is granted, however, as to the court's decision to deny a certificate of appealability.
In October of 2006, this court entered a final order and judgment denying Ybarra's third application for habeas relief in this court. Prior to the entry of that order, in March of 2003, Ybarra filed a state habeas petition that included a claim under Atkins v. Virginia, 536 U.S. 304 (2002), a case that prohibits the execution of intellectually disabled persons. In July of 2004, this court ruled upon respondents' motion to dismiss Ybarra's federal petition. In doing so, the court found that Ybarra had failed to exhaust his state court remedies for numerous claims, including his Atkins claim, and directed him to either abandon his unexhausted claims or suffer dismissal pursuant to Rose v. Lundy, 455 U.S. 509 (1982). After this court denied his motion for reconsideration with regard to that decision, Ybarra filed a notice abandoning the unexhausted claims, but reserving his right to appeal the court's orders directing him to do so.
While Ybarra's appeal of this court's October 2006 judgment was pending in the Ninth Circuit Court of Appeals, the state district court, after holding a two-day hearing, denied Ybarra's Atkins claim. The Nevada Supreme Court affirmed that decision in March of 2011. Ybarra v. State, 247 P.3d 269 (Nev. 2011)
In September of 2011, a three judge panel of the court of appeals affirmed this court's denial of Ybarra's federal habeas petition. Ybarra v. McDaniel, 656 F.3d 984 (9th Cir. 2011). In May of 2012, the Nevada Supreme Court, having denied Ybarra's multiple requests for reconsideration in relation to his Atkins claim, ordered the issuance of the remittitur. Two days later, Ybarra filed a Rule 60(b) motion in this court, asserting that this court should set aside its prior orders and judgment denying habeas relief and allow him to amend his habeas petition to include an Atkins claim.
In an order entered November 15, 2012, this court concluded that Ybarra's Rule 60(b) motion was not a successive petition for the purposes of 28 U.S.C. § 2244(b) and ordered additional briefing on Ybarra's Atkins claim. After considering that briefing, this court concluded, in essence, that the Nevada Supreme Court's decision to deny Ybarra's Atkins claim is entitled to deference under 28 U.S.C § 2254(d) and, therefore, cannot be set aside by this court. That decision is the subject of Ybarra's motion under Rule 59(e).
Rule 59(e) Standards
Federal Rule of Civil Procedure 59(e) provides authority for a court to alter, amend, or vacate a prior order. See Fed. R. Civ. Pro. 59(e); Hamid v. Price Waterhouse, 51 F.3d 1411, 1415 (9th Cir. 1994). Even so, the remedy provided by the rule is extraordinary and, in the interests of finality and conservation of judicial resources, to be used sparingly. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Where a party presents no arguments in a Rule 59(e) motion that have not already been raised, relief may be denied. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985).
Case law in the Ninth Circuit acknowledges that Rule 59(e) amendments are appropriate under the following circumstances: (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or its initial decision was manifestly unjust, or (3) there is an intervening change in controlling law. Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.2003); Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Rule 59(e) motions may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009); Carroll, 342 F.3d at 945.
With his Rule 59(e) motion, Ybarra does not present any newly discovered evidence or identify an intervening change in controlling law. Thus, the issue here is confined to whether the court, in its October 8 order, committed clear error or rendered a decision that was manifestly unjust.
Ybarra argues that this court erred by not considering, in conducting its § 2254(d) analysis, a declaration from a psychological consultant (Dr. Stephen Greenspan) and an intellectual assessment by a neuropsychologist (Dr. Johathan H. Mack). With respect to both items, Ybarra contends that, because the state court's decision is not entitled to deference under § 2254(d), he is entitled to a de novo review of all the available evidence. The issue of § 2254(d) deference is addressed below in the discussion of Ybarra's argument that the court erred in concluding that he cannot overcome the limitations set forth in that section.
With respect to Dr. Greenspan's declaration, Ybarra contends that the court was incorrect in concluding that Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008), and Blair v. Crawford, 275 F.3d 1156 (9th Cir. 2002), do not require this court to consider the declaration. Ybarra goes to great lengths to demonstrate that Chambers and Blair control the outcome here. In the end, however, Blair and Chambers addressed, for reasons unique to each case, whether the Nevada Supreme Court had considered, in a wholly-different type of proceeding, the ...