Ybarra v. McDaniel

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT YBARRA, JR.,  No. 07-99019
Petitioner-Appellant, D.C. No.
v.  CV-00-00233-
E.K. MCDANIEL, Warden, ECR/RAM
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted
May 5, 2011—Pasadena, California

Filed September 6, 2011

Before: Barry G. Silverman, Richard C. Tallman, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Tallman

16849
 YBARRA v. MCDANIEL 16853

COUNSEL

Michael Pescetta (argued), Assistant Federal Public Defender,
Las Vegas, Nevada, for petitioner-appellant Robert Ybarra, Jr.

Robert E. Wieland (argued), Senior Deputy Attorney General,
State of Nevada, Reno, Nevada, for respondent-appellee E.K.
McDaniel.

OPINION

TALLMAN, Circuit Judge:

Over thirty years ago, petitioner Robert Ybarra, Jr., was
convicted and sentenced to death for the 1979 kidnapping,
rape, and murder of sixteen-year-old Nancy Griffith in her
hometown of Ely, Nevada. The Nevada Supreme Court
affirmed his conviction and sentence on direct appeal. After
Ybarra was denied state post-conviction relief, he petitioned
16854 YBARRA v. MCDANIEL
the United States District Court for the District of Nevada for
a writ of habeas corpus. He now appeals the district court’s
denial of habeas relief.

Ybarra challenges the following four district court rulings
for which a certificate of appealability (COA) has been
granted: (1) the dismissal of several of his claims as procedur-
ally barred under Nevada State law; (2) the dismissal for fail-
ure to exhaust his claim that he was denied his constitutional
right to an impartial jury; (3) the denial on the merits of his
claim that an unconstitutionally vague jury instruction at the
penalty phase violated his constitutional rights; and (4) the
denial on the merits of his claim that the cumulative effect of
errors in the state court proceedings denied him due process.
Ybarra also challenges the following district court rulings for
which no COA has been granted: (5) the district court’s
requirement that he abandon his unexhausted claims; (6) the
dismissal of his prosecutorial misconduct claim for failure to
exhaust and the denial on the merits of his claim that his
counsel was ineffective for failing to object to the alleged pro-
secutorial misconduct; and (7) the denial on the merits of his
claim that his counsel was ineffective for failing to voir dire
the jury on the insanity defense.

As to the certified claims, we hold that the district court
erred by dismissing as unexhausted Ybarra’s claim for denial
of an impartial jury, but, after receiving supplemental briefing
from the parties, we deny this claim on the merits. We affirm
the district court on the other three claims. As to the uncerti-
fied claims, we grant a COA on the prosecutorial misconduct
claim because the district court erred by finding this claim
unexhausted, but we also deny that claim on the merits. We
deny a COA on the remaining two uncertified claims. There-
fore, Ybarra is not entitled to habeas relief.

I

On the evening of September 28, 1979, victim Nancy Grif-
fith and her girlfriend met Ybarra in Ely, Nevada. After the
 YBARRA v. MCDANIEL 16855
three drove around town in Ybarra’s truck, Ybarra dropped
off Griffith’s friend at her request. Griffith never returned
home. On the morning of September 29, 1979, she was dis-
covered by two local men, horribly burned and with a deep
gash in her shoulder but still alive, lying by the side of the
road on the outskirts of Ely in White Pine County, Nevada.
After a deputy sheriff was summoned, Griffith was able to tell
him that she had been raped by a man in a red truck who
worked north of where she had been found. Griffith died later
that day in a Salt Lake City hospital burn unit.

Crime scene investigators found a quarter-mile trail of
burned skin and clothing marking the path Griffith had
crawled from a desert wash to the road. In the vicinity, inves-
tigators found signs of a struggle, as well as a gas can with
Ybarra’s fingerprints on it, boot prints that matched Ybarra’s
boots, and tire tracks that matched the tires on Ybarra’s truck.
In addition, Griffith’s fingerprints were found on a beer can
at Ybarra’s mobile home. An autopsy showed that she had
recently had sexual intercourse and had suffered trauma to her
genital area and a severe blow to the head. Her death had been
caused by burns that covered 80% of her body and seared her
respiratory passages. Burn patterns indicated that a flammable
liquid had been poured onto Griffith and ignited while she
was standing or sitting, meaning that she was likely conscious
at the time.

Ybarra was arrested that same day and charged one week
later with murder, kidnapping, and sexual assault. After he
was found competent to stand trial, Ybarra initially pled not
guilty, but later changed his plea to guilty by reason of insan-
ity. His trial began in Ely on March 31, 1980, and the jury
was sworn on April 7, 1980.

Ybarra immediately moved for a change of venue on the
grounds that he could not obtain an impartial jury in White
Pine County, which had a population of about 8,000 people
at the time. Voir dire questioning had revealed that all of the
16856 YBARRA v. MCDANIEL
prospective jurors had been exposed to news coverage of the
crime, and nine of the twelve empaneled jurors were
acquainted with Griffith or her family. After the trial court
denied the motion, Ybarra filed an interlocutory appeal to the
Nevada Supreme Court, which was denied on October 8,
1980.

When trial resumed on June 9, 1981, Ybarra argued that he
suffered from brain damage and mental illness and that he had
killed Griffith while under the delusion that he had to sacrifice
her to Satan so that his ex-wife would return to him. On June
24, 1981, the jury convicted Ybarra of first-degree murder,
kidnapping, and sexual assault. On June 27, 1981, he was sen-
tenced to death after a penalty hearing. The Nevada Supreme
Court affirmed his conviction on direct appeal on March 28,
1984. See Ybarra v. State, 679 P.2d 797 (Nev. 1984), cert.
denied, 470 U.S. 1009 (1985).

In 1985, Ybarra filed his first state petition for post-
conviction relief, which was denied by the Nevada Supreme
Court on January 21, 1987. See Ybarra v. State, 731 P.2d 353
(Nev. 1987). Ybarra then filed a federal habeas corpus peti-
tion on March 16, 1987. At his request, it was dismissed with-
out prejudice on February 29, 1988. After Ybarra’s second
state petition was dismissed by the Nevada Supreme Court on
June 29, 1989, he again filed a federal habeas petition on
August 14, 1989, including both exhausted and unexhausted
claims. On March 31, 1993, the district court dismissed that
petition without prejudice to allow Ybarra to again return to
state court to fully exhaust his claims, but warned him that
upon his return to federal court he should bring only
exhausted claims. On April 22, 1993, Ybarra filed his third
state petition. The Nevada Supreme Court dismissed the
entire petition on July 6, 1999, finding his claims to be proce-
durally barred under Nev. Rev. Stat. § 34.800.

Ybarra then filed a pro se federal habeas petition on July
28, 2000. Pursuant to a district court order, it was amended on
 YBARRA v. MCDANIEL 16857
September 20, 2002, after the appointment of a federal public
defender. The amended petition is the subject of this appeal.
As to this petition, the district court has issued four relevant
orders. On July 27, 2004, it dismissed several of Ybarra’s
claims as procedurally barred. In that order, the district court
enforced its 1993 order by requiring Ybarra to abandon his
unexhausted claims or face dismissal of his entire petition.
After Ybarra abandoned the unexhausted claims, the district
court addressed the remaining claims on the merits and denied
habeas relief on October 31, 2006.

Ybarra then filed a motion for reconsideration arguing,
among other things, that the district court should reach his
previously abandoned claims because they had since been
exhausted in state court pursuant to a fourth state petition filed
in 2003 and denied by the Nevada Supreme Court on Novem-
ber 28, 2005. On December 13, 2006, the district court denied
the motion for reconsideration. Finally, on January 16, 2007,
the district court granted in part and denied in part a COA.
This appeal followed.

II

We review de novo the district court’s denial of habeas
relief, Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005),
and “[w]e may affirm the district court’s decision on any
ground supported by the record, even if it differs from the dis-
trict court’s rationale,” Lambert v. Blodgett, 393 F.3d 943,
965 (9th Cir. 2004). The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) governs our review of Ybar-
ra’s habeas petition. See Woodford v. Garceau, 538 U.S. 202,
210 (2003). Under AEDPA, we may not grant habeas relief
unless the state court proceedings resulted in a decision that
was (1) “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
16858 YBARRA v. MCDANIEL
§ 2254(d). Factual determinations made by a state court are
presumed to be correct, and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence.
Id. § 2254(e)(1).

III

We begin by addressing the claims for which the district
court granted a COA.

A

First, Ybarra contends that the district court erred by dis-
missing as procedurally barred certain of the claims in his fed-
eral habeas petition (claims 4, 6, 7, and 14) originally
presented to the Nevada state courts in his third state post-
conviction petition. The Nevada Supreme Court had dis-
missed Ybarra’s entire third state post-conviction petition
under Nev. Rev. Stat. § 34.800, a statutory laches rule impos-
ing a rebuttable presumption that prejudice to the State suffi-
cient to warrant dismissal exists if a petition is filed more than
five years after the conclusion of direct appeal.1 Ybarra’s third
1
In relevant part, Nev. Rev. Stat. § 34.800 provides:
(1) A petition may be dismissed if delay in the filing of the peti-
tion:
(a) Prejudices the respondent or the State of Nevada in respond-
ing to the petition, unless the petitioner shows that the petition is
based upon grounds of which the petitioner could not have had
knowledge by the exercise of reasonable diligence before the cir-
cumstances prejudicial to the State occurred;
...
(2) A period exceeding 5 years between the filing of . . . a deci-
sion on direct appeal of a judgment of conviction and the filing
of a petition challenging the validity of a judgment of conviction
creates a rebuttable presumption of prejudice to the State. In a
motion to dismiss the petition based on that prejudice, the respon-
dent or the State of Nevada must specifically plead laches. The
petitioner must be given an opportunity to respond to the allega-
tions in the pleading before a ruling on the motion is made.
 YBARRA v. MCDANIEL 16859
state post-conviction petition was filed on April 26, 1993,
more than nine years after his conviction had been affirmed
by the Nevada Supreme Court on direct appeal on March 24,
1984. The Nevada Supreme Court found that Ybarra had
failed to rebut the presumption of prejudice to the State aris-
ing from this delay.

[1] Federal habeas review is barred for any claims dis-
missed by a state court pursuant to a state procedural rule that
is adequate to support the judgment and independent of fed-
eral law. Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Ybarra argues that section 34.800 is not “adequate” to bar
federal review because it was not “clear, consistently applied,
and well-established at the time of the petitioner’s purported
default” as required by our precedent. See Wells v. Maass, 28
F.3d 1005, 1010 (9th Cir. 1994).

[2] We have previously addressed the adequacy of
Nevada’s timeliness rules, including section 34.800, and held
that Nevada “consistently applies its procedural rules to bar
review of the merits of an untimely claim in the absence of
a showing of cause and lack of prejudice to the State.” Moran
v. McDaniel, 80 F.3d 1261, 1270 (9th Cir. 1996). However,
a procedural rule’s adequacy is not necessarily determined by
our court once and for all time. The rule’s adequacy as to any
particular petitioner must be assessed as of the date of that
petitioner’s purported default. See Fields v. Calderon, 125
F.3d 757, 760-61 (9th Cir. 1997) (noting that a petitioner must
have fair notice of the procedural rule at the time when his
claim should have been raised). Therefore, a petitioner can
show that a rule deemed adequate in one case is inadequate
as to his case because it was not consistently or regularly
applied at the time of his particular default. See Ortiz v. Stew-
art, 149 F.3d 923, 932 (9th Cir. 1998).

[3] Ybarra, however, cannot make such a showing here.
The date of Ybarra’s default—the date by which he needed to
file his petition in order to avoid a presumption of prejudice
16860 YBARRA v. MCDANIEL
to the state under section 34.800—was 1989, five years after
the Nevada Supreme Court’s denial of his direct appeal.
Moran relied on a 1984 Nevada Supreme Court laches case
to hold that a petitioner who defaulted in 1992 had sufficient
notice of the possibility of dismissal for delay under section
34.800. See 80 F.3d at 1269 (citing Groesbeck v. State, 679
P.2d 1268, 1269 (Nev. 1984)). Ybarra’s default happened dur-
ing the same time frame, so Moran’s adequacy analysis
applies to his case. Because we find no ground on which to
distinguish Moran, we are bound by it. Therefore, section
34.800 is an adequate and independent state procedural rule
that bars our review.2 Ybarra does not argue that he can show
cause and prejudice or actual innocence sufficient to over-
come this procedural bar. See Coleman, 501 U.S. at 750.
Therefore, we affirm the district court’s dismissal of Ybarra’s
claims 4, 6, 7, and 14.

B

Ybarra next asserts that the district court erred by dismiss-
ing as unexhausted his claim that the state court’s denial of
his motion for a change of venue deprived him of his constitu-
2
Ybarra argues that we should reassess Moran in light of our holding
in Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), that the State
has the ultimate burden of proving the adequacy of a procedural rule once
a petitioner puts the rule at issue “by asserting specific factual allegations
that demonstrate the inadequacy of the state procedure, including citation
to authority demonstrating inconsistent application of the rule.” Id. at 586.
However, we are not persuaded that the litany of cases cited by Ybarra
puts the adequacy of section 34.800 at issue. In the only cited case in
which the Nevada court declined to apply section 34.800 when it was
invoked by the State, the delay in filing was less than five years, so no pre-
sumption of prejudice arose. See Bennett v. State, 901 P.2d 676, 679 (Nev.
1995). The fact that there may be cases in which the court declined to sua
sponte apply section 34.800 even after a five-year delay does not suggest
inconsistency given that the rule expressly requires the State to specifi-
cally plead the laches defense. See Nev. Rev. Stat. § 34.800(2). Absent a
showing that the Nevada court has declined to apply the rule even when
the State so pleads, Ybarra has not put its adequacy at issue.
 YBARRA v. MCDANIEL 16861
tional right to an impartial jury (claim 3). We agree with
Ybarra that the claim was, in fact, exhausted, but we deny the
claim on the merits.

1

[4] A federal court cannot grant habeas relief unless a peti-
tioner “has exhausted the remedies available in the courts of
the State.” 28 U.S.C. § 2254(b)(1)(A). In general, “exhaustion
of state remedies requires that petitioners fairly present fed-
eral claims to the state courts in order to give the State the
opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,
365 (1995) (internal quotation marks and citation omitted).
Regardless of whether or how a petitioner has presented a
claim, however, that claim has been exhausted if the state
courts have in fact ruled on its merits. See Sandgathe v.
Maass, 314 F.3d 371, 377 (9th Cir. 2002) (“Where a court has
in fact ruled on a claim, there is no possibility of friction
between the state and federal court systems caused by the
unseemliness of a federal district court’s overturning a state
court conviction without the state court’s having had an
opportunity to correct the constitutional violation in the first
instance.” (internal quotation marks, alterations, and citation
omitted)); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir.
2002) (“When the [state] Supreme Court here actually passed
on the merits, it took its opportunity to address the federal
claim.”). It is clear from the record that the Nevada Supreme
Court did in fact rule on the merits of the change of venue
claim in 1980 after Ybarra raised it in an interlocutory appeal,
as Nevada law at that time required him to do. See Nev. Rev.
Stat. §§ 2.090(2), 2.110 (1980). Therefore, the claim has been
exhausted.

2

[5] Because Ybarra’s claim was exhausted, we proceed to
16862 YBARRA v. MCDANIEL
assess its merits.3 Ybarra argues that the denial of his change
of venue motion deprived him of his right to an impartial jury,
given the sensational nature of the crime and White Pine
County’s population at the time of less than 8,000 residents,
many of whom were acquainted with the victim’s family. All
of the prospective jurors had been exposed to media coverage
of the crime, and at least 9 of the 12 empaneled jurors knew
Griffith or her family. However, the Nevada Supreme Court’s
decision involved neither an unreasonable application of
Supreme Court precedent nor an unreasonable determination
of the relevant facts based on the evidence presented. See 28
U.S.C. § 2254(d).

The Nevada Supreme Court relied primarily on Murphy v.
Florida, 421 U.S. 794 (1975), when it denied Ybarra’s inter-
locutory appeal. In Murphy, a defendant accused of a robbery
argued that extensive pretrial news coverage of the robbery,
his arrest, and his past notorious crimes (including the theft of
the Star of India sapphire from a New York museum) had
deprived him of a fair trial. 421 U.S. at 795-96. However, the
United States Supreme Court rejected the proposition that
“juror exposure to information about a state defendant’s prior
convictions or to news accounts of the crime with which he
is charged alone presumptively deprives the defendant of due
process.” Id. at 799. The Court refused to equate juror impar-
tiality with a lack of any preconceptions about the defendant
or the case. Id. at 800 (“’To hold that the mere existence of
any preconceived notion as to the guilt or innocence of an
accused, without more, is sufficient to rebut the presumption
3
Remand to the district court is unnecessary, because there can be no
additional factfinding by the district court. Federal habeas review “is lim-
ited to the record that was before the state court that adjudicated the claim
on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). We
may affirm on any ground supported by this record. See Downs v. Hoyt,
232 F.3d 1031, 1036, 1039 (9th Cir. 2000) (assessing merits of habeas
claim that the district court had dismissed as procedurally defaulted). We
have reviewed the supplemental briefs on the merits of the claim that we
ordered the parties to file after oral argument.
 YBARRA v. MCDANIEL 16863
of a prospective juror’s impartiality would be to establish an
impossible standard.’ ” (quoting Irvin v. Dowd, 366 U.S. 717,
723 (1961)).

Instead, the United States Supreme Court held that a rebut-
table presumption of impartiality normally attached if the
juror could provide assurances that he or she could “ ‘lay
aside his impression or opinion and render a verdict based on
the evidence presented in court.’ ” Id. at 800 (quoting Irvin,
366 U.S. at 723). The defendant could rebut this presumption
by demonstrating that the juror actually held a biased opinion.
Id. Murphy also acknowledged that, a juror’s assurances not-
withstanding, prejudice might be presumed “where the gen-
eral atmosphere in the community or courtroom is sufficiently
inflammatory,” or when “most veniremen will admit to a dis-
qualifying prejudice,” such that it is probable that the commu-
nity harbors “sentiment so poisoned against petitioner as to
impeach the indifference of jurors who displayed no animus
of their own.” Id at 802-03.

[6] Applying Murphy, the Nevada Supreme Court reason-
ably determined that none of the circumstances signaling
unconstitutional juror partiality were present in Ybarra’s case.
It noted that the jurors had all assured the court that they
could render a fair verdict based on the evidence presented.
It also found that there was no evidence of excessively biased
or inflammatory news coverage suggesting an “utterly cor-
rupted” trial atmosphere, id. at 798, nor any evidence indicat-
ing that any of the empaneled jurors harbored an actual bias
based on their exposure to news coverage or acquaintance
with Griffith or her family. These factual findings are entitled
to a presumption of correctness, and, as explained below
Ybarra has presented no clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1).

Ybarra suggests that voir dire statements by two of the nine
empaneled jurors who were acquainted with Griffith’s family
provided inadequate assurances of impartiality. One of these
16864 YBARRA v. MCDANIEL
jurors could only assure the court that she would “try my
hardest to be fair,” and another acknowledged that “it is pretty
difficult” knowing that he would see Griffith’s family in the
future, but “certainly I would try to keep that from entering
my mind.” However, a review of the full context of these
statements persuades us that the Nevada courts reasonably
concluded that the juror’s assurances were adequate. For
example, when these jurors were asked if they would be com-
fortable having a juror with their mindset on the jury if they
were in Ybarra’s place, both unequivocally answered “Yes.”

As to the news coverage, Ybarra’s briefing itself concedes
that it “was not as inflammatory as it could have been,
because it did not focus on inadmissible evidence, nor was its
tone as vehement as that at issue in other [Supreme Court]
cases.” We agree, and this is exactly why the Nevada court’s
conclusion was not unreasonable under those cases. Cf. Irvin,
366 U.S. at 725 (holding that media coverage was prejudicial
when “a barrage of newspaper headlines, articles, cartoons,
and pictures was unleashed against [the defendant] during the
six or seven months preceding his trial”); Rideau v. Louisi-
ana, 373 U.S. 723, 725-26 (1963) (holding that media cover-
age was prejudicial when a 20-minute film of a defendant’s
confession had been shown on television three times prior to
trial). Most of the coverage of Ybarra’s case simply reported
the facts of the crime and the pretrial proceedings. The most
inflammatory item Ybarra points to, an editorial praising the
recent execution of a convicted murderer, does not once refer
to Ybarra’s case.

Ybarra also claims that the number of prospective jurors
dismissed for bias demonstrated an unacceptably high level of
community hostility towards Ybarra. Of the 111 people sum-
moned for the venire, 52 were dismissed for cause because
they admitted to having fixed opinions about the case due to
news coverage or personal relationships. While we recognize
that this is a higher percentage than the 20 out of 78 venire
members dismissed for bias that Murphy found constitution-
 YBARRA v. MCDANIEL 16865
ally acceptable, it is still not “most” of the venire as Murphy
requires to defeat the presumption of impartiality accorded to
jurors who assert that they can be fair. 421 U.S. at 803. Fur-
thermore, it is a significantly lower percentage than the 268
of 430 venire members dismissed for bias that the Supreme
Court held to be too high in Irvin v. Dowd, 366 U.S. at 727.
On direct review, the numbers presented by Ybarra might
make this case a close one, but on habeas review, we cannot
say that they render the Nevada Supreme Court’s decision
objectively unreasonable.

Finally, Ybarra argues that several statements overheard by
jurors indicate that community sentiment was so poisoned
against Ybarra that a fair trial was impossible. For example,
one juror overheard a comment in a store that “if he’s not
guilty there will be an uprising,” and another heard a com-
ment that “you’d better hang that dirty bastard.”4 Notably,
however, both of these jurors claimed that they were unaf-
fected by these expressions. Furthermore, these comments do
not show that the Nevada courts unreasonably concluded that
community hostility was not so excessive as to impeach the
jurors’ assertions of impartiality. Distinguishable are cases in
which the Supreme Court has found that public opinion cre-
ated a “circus atmosphere” that was “entirely lacking in the
solemnity and sobriety to which a defendant is entitled in a
system that subscribes to any notion of fairness and rejects the
verdict of a mob.” Murphy, 421 U.S. at 799. For example, in
Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme
Court held that a defendant was denied due process when,
among other things, jurors “were thrust into the role of celeb-
rities,” had their pictures and addresses published, were “ex-
4
While Ybarra did not present this evidence during his interlocutory
appeal, he did present it to the Nevada courts on post-conviction review.
Therefore, we consider it as part of the relevant state court record. See
Cullen, 131 S. Ct. at 1409-10 (considering evidence presented to the state
court at trial as well as during state post-conviction proceedings). On post-
conviction review, the Nevada Supreme Court summarily affirmed its pre-
vious denial of Ybarra’s venue claim.
16866 YBARRA v. MCDANIEL
posed . . . to expressions of opinion from both cranks and
friends,” and received anonymous letters. Id. at 353. The few
comments reported in Ybarra’s case—which were overheard
sporadically by the jurors but not persistently directed at them
in any systematic way—simply do not pose a comparable
threat to jury impartiality.

[7] In short, the Nevada courts’ denial of Ybarra’s motion
for a venue change involved neither an unreasonable determi-
nation of the facts nor an unreasonable application of federal
law as defined by Supreme Court precedent existing at the time.5
Therefore, we must deny Ybarra’s claim for habeas relief on
this ground.

C

Ybarra’s next certified issue on appeal is whether the dis-
trict court erred when it denied claim 1 of his habeas petition
by holding that a penalty-phase jury instruction given on an
aggravating factor involving “depravity of mind,” while
unconstitutional, was harmless error. We affirm the district
court’s ruling.

1

One of the four aggravating factors found by the jury prior
to its imposition of the death penalty on June 27, 1981, was
that the murder “involved torture, depravity of mind, or the
5
We note that Ybarra’s briefing on the merits of this claim cites to a
recent Supreme Court case, Skilling v. United States, 130 S. Ct. 2896
(2010), and that both sides cite to numerous Ninth Circuit cases. These
citations are irrelevant to our analysis, which must turn only on Supreme
Court precedent existing at the time the Nevada state court ruled on Ybar-
ra’s claim. See Cullen, 131 S. Ct. at 1399 (noting that under AEDPA,
“[s]tate-court decisions are measured against this Court’s precedents as of
‘the time the state court renders its decision’ ” (quoting Lockyer v.
Andrade, 538 U.S. 63, 71-72 (2003))).
 YBARRA v. MCDANIEL 16867
mutilation of the victim.” As to the “depravity of mind” com-
ponent, the jury was given the following instruction:

The condition of mind described as depravity of
mind is characterized by an inherent deficiency of
moral sense and rectitude. It consists of evil, corrupt
and perverted intent, which is devoid of regard for
human dignity and which is indifferent to human
life. It is a state of mind outrageously, wantonly vile,
horrible or inhuman.

[8] However, prior to Ybarra’s penalty phase trial, the
United States Supreme Court had held that whether an offense
“was outrageously or wantonly vile, horrible or inhuman in
that it involved torture, depravity of mind, or an aggravated
battery to the victim” was an unconstitutionally vague aggra-
vating factor when not given a limiting construction. See God-
frey v. Georgia, 446 U.S. 420, 422, 432 (1980); see also id.
at 428-29 (“There is nothing in these few words, standing
alone, that implies any inherent restraint on the arbitrary and
capricious infliction of the death sentence. A person of ordi-
nary sensibility could fairly characterize almost every murder
as ‘outrageously or wantonly vile, horrible and inhuman.’ ”).
We have already held that, after Godfrey, the very same
Nevada jury instruction given in Ybarra’s case is unconstitu-
tional and contrary to clearly established federal law under
AEDPA. See Valerio v. Crawford, 306 F.3d 742, 752, 755-56
(9th Cir. 2002) (en banc). Ybarra’s penalty-phase hearing
took place in 1981, after Godfrey was decided, and the
Nevada Supreme Court affirmed the instruction on direct
appeal in 1984 without considering Godfrey. Therefore, we
agree with the district court that the state court decision was
contrary to then-existing clearly established federal law.

2

[9] In general, “constitutional errors do not require reversal
of a conviction, but are susceptible to harmless error review.”
16868 YBARRA v. MCDANIEL
United States v. Montalvo, 331 F.3d 1052, 1056-57 (9th Cir.
2003). “The usual standard for harmless error on federal
habeas corpus for state prisoners” is that of Brecht v. Abram-
son, 507 U.S. 619 (1993). Valerio, 306 F.3d at 762. Brecht
applies here because an erroneous jury instruction does not
“taint the trial ‘from beginning to end’ or undermine ‘the
framework within which the trial proceeds.’ ” Montalvo, 331
F.3d at 1057 (quoting Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991)). Under Brecht we ask whether the constitu-
tional error “had substantial and injurious effect or influence
in determining the jury’s verdict.” 507 U.S. at 637.

[10] Our Brecht analysis in Ybarra’s case follows the
approach we adopted in Valerio for the same unconstitutional
Nevada aggravating factor and jury instruction. We assess
whether the vague construction of the “depravity” factor had
a substantial and injurious effect or influence on the jury’s
decision to impose the death sentence, in comparison to what
its decision would have been had it been instructed on a con-
stitutionally narrowed version of the depravity factor. See
Valerio, 306 F.3d at 762. Instead of being asked whether the
murder “involved torture, depravity of mind, or the mutilation
of the victim,” the jury should have been asked whether the
murder “involved torture, mutilation, or other serious and
depraved physical abuse beyond the act of killing itself.”6 See
id. As to the meaning of this narrowed construction, we have
held that the following instructions on “torture” and “mutila-
tion,” which were given to Ybarra’s jury, are constitutional:

The essential elements of murder by means of torture
are (1) the act or acts which caused the death must
6
This narrowing construction of the depravity factor was provided by
the Nevada Supreme Court in Robins v. State, 798 P.2d 558, 570 (Nev.
1990), which held that it complied with Godfrey. See Valerio, 306 F.3d at
751. In Valerio, we assumed for purposes of the Brecht analysis that this
narrowed construction was constitutional, see id. at 762, and we do the
same here.
 YBARRA v. MCDANIEL 16869
involve a high degree of probability of death, and (2)
the defendant must commit such act or acts with the
intent to cause cruel pain and suffering for the pur-
pose of revenge, persuasion or for any other sadistic
purpose.

...

[T]he term “mutilate” means to cut off or perma-
nently destroy a limb or essential part of the body,
or to cut off or alter radically so as to make imper-
fect.

See Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir.
1989), vacated on other grounds sub nom. Angelone v.
Deutshcer, 500 U.S. 901 (1991). In addition, we have held
that “the phrase ‘beyond the act of killing itself’ modifies all
three conditions: torture or mutilation or depraved physical
abuse.” Valerio, 306 F.3d at 762 n.8.

[11] We believe that there is “fair assurance,” id. at 762,
that had jurors been instructed on the narrowed version of the
aggravating factor, they would have nonetheless found that it
applied. Griffith undoubtedly suffered mutilation, as the
defense conceded at sentencing. She was burned so badly that
most of her hair was gone, her eyes were nearly swollen shut,
and a responding officer who knew her was unable to recog-
nize her. There was also medical testimony at sentencing indi-
cating that, had she lived, her face would have been “very
difficult to reconstruct,” and she “would have undergone fin-
ger and possibly forearm amputations” because of the depth
of her burns. Crime scene investigators found the entire skin
of one hand with fingernails still attached on the ground in
one piece. These gruesome details make it clear that Ybarra’s
acts permanently and radically altered or destroyed parts of
Griffith’s body.

Relying on Valerio, Ybarra argues that, because the act of
burning Griffith was what killed her, her burn-related injuries
16870 YBARRA v. MCDANIEL
cannot constitute mutilation “beyond the act of killing itself.”
In Valerio, we held that when a victim died from the cumula-
tive effect of forty-five stab wounds, rather than the effect of
any one single wound, a juror could reasonably conclude that
none of the stab wounds constituted mutilation or serious
physical abuse beyond the act of killing itself. See 306 F.3d
at 762-63. In Ybarra’s case, however, we hold that this “death
by a thousand cuts” reasoning is inapposite. Although the hor-
rible disfigurement Griffith suffered was a result of the same
act that killed her, it was not a mere incident to her death.
Even if Griffith died from the cumulative effect of her burns,
we think it incontrovertible that she suffered destruction of
her face and hands far more severe than what was necessary
to cause her death. See Vanisi v. State, 933 P.3d 1164, 1168,
1172-73 (Nev. 2001) (holding that a finding of mutilation
“beyond the act of killing itself” could be supported by medi-
cal testimony describing “extensive and severe injury” to the
victim’s face and head, when the cause of death was
described as “multiple injuries to the skull and brain due to
blunt impact trauma” such that it was not clear which blows
actually killed the victim).

[12] In short, even if the unconstitutionally vague “deprav-
ity” aggravating factor had been appropriately narrowed, we
are confident that the jury would nonetheless have applied it.
Thus, the jury would have been faced with the same balancing
determination it ultimately made—whether the four aggravat-
ing factors it found were outweighed by the mitigating evi-
dence presented.7 See Nev. Rev. Stat. § 200.030(4)(a). It most
certainly would have reached the same result. Because the
constitutional error did not have a substantial or injurious
7
The other three aggravating factors were: (1) The murder was commit-
ted by a defendant who was previously convicted of a felony involving the
use or threat of violence to the person of another; (2) The murder was
committed while the defendant was engaged in the commission of forcible
rape; and (3) The murder was committed while the defendant was engaged
in the commission of kidnapping in the first degree.
 YBARRA v. MCDANIEL 16871
effect or influence on the jury’s imposition of the death sen-
tence, it is harmless under Brecht.

IV

Before discussing Ybarra’s final certified claim of cumula-
tive error, we first turn to those issues for which the district
court denied a certificate of COA. Under AEDPA, a petitioner
cannot appeal the district court’s ruling on a particular issue
without first obtaining a COA for that issue from either a dis-
trict judge or a circuit judge. 28 U.S.C. § 2253(c); Valerio,
306 F.3d at 763. A COA should be granted if a petitioner can
show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,”
or, in the case of a district court procedural ruling, reasonable
jurists would find it debatable both “whether the petition
states a valid claim of the denial of a constitutional right” and
“whether the district court was correct in its procedural rul-
ing.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Only after
we have decided whether a COA should issue may we adjudi-
cate a particular claim’s merits. Miller-El v. Cockrell, 537
U.S. 322, 336-37 (2003).

A

Ybarra first seeks a COA on the issue of whether the dis-
trict court improperly required him to abandon the unex-
hausted claims in his 2002 habeas petition. We deny a COA
on this issue because we find that it is not reasonably debat-
able. A district court must be free to manage complex habeas
corpus litigation by imposing reasonable constraints on the
orderly presentation of the claims.

[13] If a habeas petition is “mixed” such that it includes
both unexhausted and exhausted claims, a district court must
dismiss it, leaving the petitioner an option to either abandon
the unexhausted claims or return to state court to exhaust
them. Rose v. Lundy, 455 U.S. 509, 510 (1982). The Supreme
16872 YBARRA v. MCDANIEL
Court has made it clear that “it would be appropriate for an
order dismissing a mixed petition to instruct an applicant that
upon his return to federal court he is to bring only exhausted
claims.” Slack, 529 U.S. at 489 (emphasis added). This is
exactly what the district court’s 1993 order did. After noting
that “a federal court may not address the merits of any
grounds for relief if there are any unexhausted grounds before
the court,” the court stated:

Petitioner is admonished that when a new federal
petition for writ of habeas corpus is filed, it should
contain only fully exhausted grounds for relief, and
it should contain all (without exception) of Petition-
er’s claims for habeas corpus relief. Petitioner will
not be given another opportunity to return to state
court. Petitioner should therefore use this last oppor-
tunity to return to state court to exhaust all grounds
for relief.

[14] Having thus informed Ybarra of the exhaustion
requirement and the consequences of disregarding it,8 the dis-
trict court had the power to dismiss Ybarra’s habeas petition
if he failed to comply with its order. See Slack, 529 U.S. at
489 (noting that “[o]nce the petitioner is made aware of the
exhaustion requirement, no reason exists for him not to
exhaust all potential claims before returning to federal court,”
and the district court could dismiss his petition for failure to
comply with the court’s order under Fed. R. Civ. Proc. 41(b)).
When Ybarra returned to district court with unexhausted
claims in his 2002 petition, the district court appropriately
allowed him to avoid the harsh consequence of outright dis-
missal of the entire petition by abandoning the unexhausted
claims. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.
2000) (“[D]istrict courts must provide habeas litigants with
8
We find entirely meritless Ybarra’s contention that the language in the
1993 order was somehow inadequate to warn him that he would forfeit
any unexhausted claims in the future.
 YBARRA v. MCDANIEL 16873
the opportunity to amend their mixed petitions by striking
unexhausted claims as an alternative to suffering dismissal.”).
Nothing the district court did was even remotely improper,
much less an abuse of discretion.9 See Hearns v. San Bernar-
dino Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008)
(reviewing a Rule 41(b) dismissal for abuse of discretion).

Nor did the district court abuse its discretion when it denied
Ybarra’s Rule 59(e) motion for reconsideration, in which
Ybarra argued that several of the claims he had abandoned
following the district court’s 2004 order had since been
exhausted by the Nevada Supreme Court in a November 28,
2005, ruling. See Zimmerman v. City of Oakland, 255 F.3d
734, 737 (9th Cir. 2001) (reviewing the denial of a Rule 59(e)
motion for abuse of discretion). A Rule 59(e) motion may be
granted if “(1) the district court is presented with newly dis-
covered evidence, (2) the district court committed clear error
or made an initial decision that was manifestly unjust, or (3)
there is an intervening change in controlling law.” Id. at 740.
Here, the district court reasonably determined that Ybarra
failed to make the requisite showing. In particular, the evi-
dence of exhaustion that Ybarra sought to present was not
“newly discovered” for purposes of Rule 59(e) because
Ybarra was aware of it almost one year prior to the district
court’s denial of his habeas petition on October 31, 2006. See
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834
(6th Cir. 1999) (finding evidence is not newly discovered, for
purposes of a Rule 59(e) motion, if it was available prior to
district court’s ruling).

[15] Because it is not reasonably debatable that the district
court’s handling of the unexhausted claims in Ybarra’s federal
habeas petition was not an abuse of discretion, we deny the
COA on this issue.
9
We note that Ybarra had already been given two chances to return to
state court to exhaust his claims: once in 1987 after his first federal habeas
filing, and again in 1993 after his second.
16874 YBARRA v. MCDANIEL
B

Ybarra also seeks a COA for two claims pertaining to state-
ments the prosecutor made during closing arguments at the
penalty phase. In his closing argument, the prosecutor referred
to the victims of notorious Utah criminal Gary Gilmore, dis-
cussed several passages in the Bible, and described the infa-
mous Kitty Genovese murder in New York, during which the
victim was stabbed 17 times over a period of 35 minutes. The
prosecutor then told the jury:

Thirty-eight people witnessed at least part or all of
the incident and not one called the police until she
was dead. On the night of September 28th, 1979,
Nancy Griffith died. There weren’t thirty-eight peo-
ple there to watch, but by sitting for two weeks
through this trial, you, ladies and gentlemen, become
the witnesses to a serious crime. The question now
is how you respond? What will you do about it?

On state post-conviction review, Ybarra claimed that these
remarks constituted prosecutorial misconduct and that his
counsel had been ineffective in failing to object to them. The
Nevada Supreme Court found that the prosecutor’s remarks
were improper because they discussed facts outside of the
record, but that most of them had been invited by defense
counsel’s own improper and “far ranging” arguments, which
included “a long discourse on Biblical subjects” and descrip-
tions of executions of various persons, including Gary Gil-
more. Ybarra v. State, 731 P.2d 353, 357-58 (Nev. 1987). The
Court concluded that, in any case, “where, as here, evidence
of a defendant’s guilt is particularly overwhelming and the
death penalty is particularly appropriate, prosecutorial mis-
conduct may be deemed harmless error.” Id. at 358. Accord-
ingly, it held that “there is no reversible error, either in
counsel’s failure to object or in the prosecutor’s improper
remarks.” Id.
 YBARRA v. MCDANIEL 16875
Ybarra now asserts that the district court erred by (1) dis-
missing as unexhausted his claim of prosecutorial misconduct,
and (2) denying his claim of ineffective assistance of counsel
for failure to object to the prosecutor’s statements.

1

[16] As to the prosecutorial misconduct claim, we grant
the COA because the district court’s dismissal for failure to
exhaust was incorrect. The Nevada Supreme Court recognized
that Ybarra had raised two claims arising from the prosecu-
tor’s closing statement: an ineffective assistance of counsel
claim for failure to object to the improper statements and a
prosecutorial misconduct claim. See Ybarra, 731 P.2d at 354
(“Ybarra now renews five of his claims of ineffective assis-
tance of counsel at trial [including failure to object to prosecu-
torial misconduct], and his claim of prosecutorial
misconduct.”). It then concluded that no reversible error
existed, “either in counsel’s failure to object or in the prose-
cutor’s improper remarks.” Id. at 358 (emphasis added).
Because the Nevada Supreme Court “actually passed on the
merits” of both claims, Greene, 288 F.3d at 1088, those
claims have both been exhausted. We reverse the district court
insofar as it held to the contrary.

However, proceeding to review the state court record
before us, we deny Ybarra’s prosecutorial misconduct claim
on the merits because the Nevada Supreme Court’s decision
was not contrary to or an unreasonable application of United
States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
The Nevada Supreme Court’s 1987 ruling relied on United
States v. Young, 470 U.S. 1 (1985). Ybarra, 731 P.2d at 358.
Young held that inappropriate prosecutorial comments do not
necessarily warrant reversal, but rather “must be examined
within the context of the trial to determine whether the prose-
cutor’s behavior amounted to prejudicial error.” 470 U.S. at
12. In Young, the prosecutor had stated that he personally
believed in the defendant’s guilt and had urged the jury to “do
16876 YBARRA v. MCDANIEL
its job.” Id. at 17-18. The United States Supreme Court found
that these statements constituted error, but did not “seriously
affect[ ] the fairness of the trial,” id. at 20, because they were
understood as responses to improper remarks made by the
defense. See id. at 17-18 (“Given the context of the prosecu-
tor’s remarks and defense counsel’s broadside attack . . . we
conclude that the jury was not influenced to stray from its
responsibility to be fair and unbiased.”).

[17] Under Young, it was not unreasonable for the Nevada
Supreme Court to decide that, viewed in context, the prosecu-
tor’s improper statements—including his implied exhortation
to the jury to “do its job” by reference to the Genovese case
—did not constitute reversible error. The court reasonably
determined that most of the statements were invited by the
defense’s closing statement, which included a lengthy, bibli-
cally based argument against the death penalty as well as sev-
eral graphic descriptions of the executions of specific persons
throughout history. Even one of Ybarra’s attorneys later con-
ceded that the defense had “opened the door” to the prosecu-
tor’s statements. Ybarra, 731 P.2d at 358. To the extent that
Ybarra’s briefing argues that the prosecutor “placed all of the
weight of potential public opprobrium upon the juror’s deci-
sion” by comparing the jury to the onlookers in the Genovese
case, we note the defense also brought significant “extra-
legal” pressure to bear on the jury: defense counsel opined
that the death penalty contravened the teachings of the New
Testament and was opposed by Christian churches, and also
suggested that jurors would be behaving “like blind cattle, fol-
lowing the law of the State” without regard to “what is true
and what is correct” if they decided to “kill Robert.” If, as
Ybarra argues, the prosecutor’s closing argument improperly
equated the imposition of the death penalty with the preven-
tion of an ongoing crime, we note that the defense’s closing
improperly equated following state law with murder.

Furthermore, we do not think the reasonableness of the
Nevada Supreme Court’s decision is impugned by its refer-
 YBARRA v. MCDANIEL 16877
ence to the “overwhelming” guilt-phase evidence against
Ybarra in its analysis of prejudicial impact of a penalty-phase
error. Ybarra’s jury was permitted to consider guilt-phase evi-
dence at the penalty phase. Because this evidence was rele-
vant to the jury’s penalty-phase verdict, it was not
inappropriate for the court to take its relative strength into
account when assessing the prejudicial impact of the prosecu-
tor’s error. See Young, 470 U.S. at 19 (noting that the “over-
whelming evidence” against the defendant “eliminates any
lingering doubt that the prosecutor’s remarks unfairly preju-
diced the jury’s deliberations . . . .”); see also Strickland v.
Washington, 466 U.S. 668, 696 (1984) (“[A] verdict or con-
clusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming
record support.”).

Because the state court’s conclusion that the prosecutor’s
improper remarks at closing argument did not constitute
reversible error was not unreasonable under clearly estab-
lished federal law, we deny habeas relief on this claim.

2

Ybarra also claims that his counsel was ineffective for fail-
ing to object to the prosecutor’s improper statements. The dis-
trict court denied this claim on the merits. Because reasonable
jurists could not find the district court’s resolution of this
claim debatable or wrong, we deny the COA.

[18] In order to prevail on an ineffective assistance of
counsel claim, a petitioner must show both that counsel’s per-
formance was deficient, and “that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 at 687. Because the Nevada
Supreme Court could have reasonably determined under
Young that the prosecutor’s improper statements did not “seri-
ously affect[ ] the fairness of the trial,” 470 U.S. at 20, it is
clear beyond debate that defense counsel’s failure to object to
16878 YBARRA v. MCDANIEL
those statements did not entirely “deprive [Ybarra] of a fair
trial” as required to meet the prejudice standard under Strick-
land. See Kyles v. Whitley, 514 U.S. 419, 435-36 (1995) (not-
ing that the Strickland prejudice standard is more difficult for
a defendant to meet than the “substantial and injurious effect
or influence” prejudice standard for harmless error review).
Therefore, no COA should issue for this claim.

C

[19] Ybarra also seeks a COA on another ineffective assis-
tance of counsel claim. He asserts that defense counsel was
ineffective for failing to voir dire the jury on the insanity
defense. The district court denied habeas relief on this claim
on the merits. We deny the COA because the district court’s
resolution of this issue is not reasonably debatable.

Ybarra has not made the required showing of prejudice
under Strickland, because he has not shown that any juror
who harbored an actual bias was seated on the jury as a result
of counsel’s failure to voir dire on the insanity defense. See
Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004)
(“Establishing Strickland prejudice in the context of juror
selection requires a showing that, as a result of trial counsel’s
[error], the jury panel contained at least one juror who was
biased.”); Wilson v. Henry, 185 F.3d 986, 991 (9th Cir. 1999)
(holding that counsel was not ineffective for failing to ask cer-
tain questions during voir dire when all jurors stated that they
would be fair and follow the law as instructed, as required by
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961)). As noted in our
discussion of Ybarra’s venue claim, all of Ybarra’s jurors
indicated that they could render a fair verdict based on the
evidence presented. We therefore decline to issue a COA for
this claim.

V

As we have now considered each of those claims of error
which are properly before us, we turn to the final certified
 YBARRA v. MCDANIEL 16879
issue on appeal: whether the cumulative effect of errors in
Ybarra’s state court proceedings warrants habeas relief. “The
cumulative effect of multiple errors can violate due process
even where no single error rises to the level of a constitutional
violation or would independently warrant reversal.” Parle v.
Runnels, 505 F.3d 922, 927 (9th Cir. 2007). We have granted
habeas relief under the cumulative effects doctrine when there
is a “unique symmetry” of otherwise harmless errors, such
that they amplify each other in relation to a key contested
issue in the case. Id. at 933.

In Ybarra’s case, we find no such symmetry of error. There
were imperfections in Ybarra’s trial, as there are in all trials,
but these imperfections did not render his trial and sentencing
“fundamentally unfair.” Id. at 927 (citing Chambers v. Missis-
sippi, 410 U.S. 284, 298, 302-03 (1973)). The claimed errors
regarding the composition of the rural, small-town jury did
not amplify each other: the fact that a juror was acquainted
with the victim or her family, for example, would not suggest
that the juror would harbor any particular bias regarding
insanity as a criminal defense. Nor did the claimed errors at
sentencing have a synergistic effect. The effect of the
improper jury instruction was to focus the jurors on the hor-
rific nature of the murder; the effect of the improper prosecu-
torial statements was to focus the jurors on their role as
community members. Furthermore, the defense was not pre-
vented from presenting counterbalancing arguments on these
points. Cf. id. at 930 (“A unique and critical thread runs
through the trial errors in this case: all of the improperly
excluded evidence . . . supported [the defendant’s] defense
that he had the requisite state of mind for first-degree murder;
at the same time, all of the erroneously admitted evidence . . .
undermined [his] defense and credibility and bolstered the
State’s case.” (emphasis in original)).

[20] In short, the combined effect of the errors in Ybarra’s
case did not “infect[ ] the trial with unfairness” or render
Ybarra’s defense “far less persuasive than it might otherwise
16880 YBARRA v. MCDANIEL
have been” so as to violate due process. Id. at 927 (citations
and alterations omitted). Therefore, habeas relief is not war-
ranted on this claim.

VI

We affirm the district court’s dismissal and denial of Ybar-
ra’s habeas petition. Specifically, as to Ybarra’s claim that the
district court erred by finding certain of his claims procedur-
ally barred by Nev. Rev. Stat. § 34.800, we affirm the district
court. We reverse the district court insofar as it held that two
of Ybarra’s claims—his claim that he was deprived of his
right to an impartial jury and his claim of prosecutorial
misconduct—were unexhausted, but we deny both of these
claims on the merits. As to Ybarra’s claim regarding the “de-
pravity” jury instruction, we affirm the district court’s holding
that the constitutional error was harmless. Finally, we affirm
the district court’s denial of Ybarra’s cumulative error claim.
We deny a COA on Ybarra’s remaining claims.

The district court’s ultimate judgment to deny Ybarra fed-
eral habeas relief is AFFIRMED.