United States District Court, D. Nevada
Ybarra is a Nevada prisoner sentenced to death. On October
31, 2006, this court entered a final judgment denying
Ybarra's petition for writ of habeas corpus under 28
U.S.C. § 2254. ECF No. 146. The United States Court of
Appeals for the Ninth Circuit affirmed that judgment. ECF No.
167. The United States Supreme Court denied Ybarra's
petition for writ of certiorari. ECF No. 189.
that appeal was pending, Ybarra filed a motion for relief
from judgment under Rule 60(b) of the Federal Rules of Civil
Procedure. ECF No. 176. The motion was premised on Atkins
v. Virginia, 536 U.S. 304 (2002), which held that the
Eighth Amendment prohibits a death sentence for persons who
are intellectually disabled. This court denied the motion
(ECF No. 228), and Ybarra's appeal of that decision
remains pending before the Ninth Circuit.
before the court is another Rule 60(b) motion. ECF No. 271.
With the current motion, Ybarra argues that his death
sentence is unconstitutional in light of the Supreme
Court's decision in Hurst v. Florida, 136 S.Ct.
Hurst, the Court held that Florida's capital
sentencing scheme violates the Sixth Amendment right to a
jury trial because, under the scheme, the jury renders an
advisory verdict but the judge makes the ultimate sentencing
determination. 136 S.Ct. at 624. In reaching that holding,
the Court relied upon Ring v. Arizona, 536 U.S. 584
(2002), which held that any fact necessary for the imposition
of the death penalty must be found by a jury, not a judge.
536 U.S. at 589. Ybarra argues this court's judgment
denying habeas relief must be set aside because this court
and the Ninth Circuit engaged in judicial fact-finding that,
under Hurst, must be conducted by a jury.
60(b) entitles the moving party to relief from judgment on
several grounds, including the catch-all category “any
other reason justifying relief from the operation of the
judgment.” Fed.R.Civ.P. 60(b)(6). Because Ybarra seeks
relief under subsection (b)(6), he must make a showing of
“extraordinary circumstances, ” which “will
rarely occur in the habeas context.” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005).
60(b) applies to habeas proceedings, but only in conformity
with AEDPA,  including the limits on successive federal
petitions set forth at 28 U.S.C. § 2244(b).
Gonzalez, 545 U.S. at 529. If a Rule 60(b) motion
seeks to add a new ground for relief or attack this
court's previous resolution of a claim on the merits, it
is, in substance, a successive habeas petition subject to the
requirements of 28 U.S.C. § 2244(b). Id. at
531. If, however, the motion “attacks, not the
substance of the federal court's resolution of a claim on
the merits, but some defect in the integrity of the federal
habeas proceedings, ” the motion is not a successive
habeas petition. Id. at 532.
motion clearly falls in the former category. Accordingly,
this court is not permitted to address the merits of
Ybarra's Hurst-based claim until Ybarra obtains
authorization from the court of appeals pursuant to 28 U.S.C.
argues that his motion is not a successive petition because
his appeal is still pending before the Ninth Circuit. As
noted above, however, only the appeal of this court's
denial of Atkins relief remains pending. The portion
of this court's disposition that Ybarra challenges with
his current Rule 60(b) motion has been affirmed by the Ninth
Circuit, and his petition for writ of certiorari has been
denied by the United States Supreme Court.
Ybarra does not cite to any controlling authority for the
proposition that the pendency of his appeal excuses him from
obtaining permission from the court of appeals to raise a new
claim or re-litigate an old one. While a Second Circuit case
arguably supports Ybarra's position (Whab v. United
States, 408 F.3d 116 (2nd Cir. 2005)),
opposing cases from other circuits are more persuasive.
See Ochoa v. Sirmons, 485 F.3d 538, 541
(10th Cir. 2007) (holding that no controlling
authority “suggests that whether a Rule 60(b) motion or
other procedural vehicle may be used to circumvent §
2244(b) depends on the incidental fact that an appeal is or
is not pending from the underlying habeas proceeding”)
and Phillips v. United States, 668 F.3d 433, 435
(7th Cir. 2012) (“Nothing in the language of
§ 2244 or § 2255 suggests that time-and-number
limits are irrelevant as long as a prisoner keeps his initial
request alive through motions, appeals, and
also argues that, even if § 2244 does apply, he is still
entitled to relief because § 2244(b)(2)(A) permits him
to pursue a claim that “relies on a new rule of
constitutional law made retroactive to cases on collateral
review by the Supreme Court that was previously
unavailable.” That provisions does not, however,
provide a basis for this court to grant Ybarra's motion.
Setting aside the absence of a decision from the Supreme
Court making Hurst retroactive,  the determination
under § 2244(b)(2)(A) is to be made by the court of
appeals, not this court. See 28 U.S.C. §
on the foregoing, this court must deny Ybarra's motion
for relief under Rule 60(b).
event Ybarra chooses to appeal this decision, this court
denies a certificate of appealability (COA).
to 28 U.S.C. § 2253(c)(2), a COA may issue only when the
petitioner "has made a substantial showing of the denial
of a constitutional right." With respect to claims
rejected on the merits, a petitioner "must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000) (citing Barefoot v. Estelle, 463 U.S. 880,
893 & n.4 (1983)). For procedural rulings, a COA will
issue only if reasonable jurists could debate (1) whether the
petition states a valid claim of the denial of a
constitutional right and (2) whether the court's
procedural ruling was correct. Id.
issue of whether Ybarra's Rule 60(b) motion should be
treated as a successive petition under Gonzalez v.
Crosby is not debatable among reasonable jurists ...