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.