Ybarra v. Mcdaniel

• Decision Date: 06 September 2011
• Docket Number: No. 07–99019.,07–99019.
• Citation: 656 F.3d 984,11 Cal. Daily Op. Serv. 11463,2011 Daily Journal D.A.R. 13616
• Parties: Robert YBARRA, Jr., Petitioner–Appellant,v.E.K. McDANIEL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

656 F.3d 984

11 Cal. Daily Op. Serv. 11,463

2011 Daily Journal D.A.R. 13,616

Robert YBARRA, Jr., Petitioner–Appellant,

v.E.K. McDANIEL, Warden, Respondent–Appellee.

No. 07–99019.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2011.Filed Sept. 6, 2011.

Michael Pescetta (argued), Assistant Federal Public Defender, Las Vegas, NV, for petitioner-appellant Robert Ybarra, Jr.Robert E. Wieland (argued), Senior Deputy Attorney General, State of Nevada, Reno, NV, for respondent-appellee E.K. McDaniel.Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. CV–00–00233–ECR/ RAM.Before: BARRY G. SILVERMAN, RICHARD C. TALLMAN, and RICHARD R. CLIFTON, Circuit Judges.

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 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 procedurally barred under Nevada State law; (2) the dismissal for failure 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 prosecutorial 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 uncertified 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. Therefore, Ybarra is not entitled to habeas relief.

I

On the evening of September 28, 1979, victim Nancy Griffith and her girlfriend met Ybarra in Ely, Nevada. After the 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 discovered 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, investigators 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 insanity. 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 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 sentenced to death after a penalty hearing. The Nevada Supreme Court affirmed his conviction on direct appeal on March 28, 1984. See Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 390 (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, 103 Nev. 8, 731 P.2d 353 (1987). Ybarra then filed a federal habeas corpus petition on March 16, 1987. At his request, it was dismissed without 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 procedurally 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 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 November 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 district 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 Ybarra's habeas petition. See Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (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 evidence presented in the State court proceeding.” 28 U.S.C. § 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 dismissing as procedurally barred certain of the claims in his federal habeas petition (claims 4, 6, 7, and 14) originally presented to the Nevada state courts in his third state postconviction petition. The Nevada Supreme Court had dismissed Ybarra's entire third state post-conviction petition under Nev.Rev.Stat. § 34.800, a statutory laches rule imposing a rebuttable presumption that prejudice to the State sufficient...