UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT YBARRA, Jr., No. 20-99012

Petitioner-Appellant, D.C. No. 3:00-cv-00233- v. GMN-VPC WILLIAM GITTERE, Warden, OPINION Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Argued and Submitted March 22, 2023 Pasadena, California

Filed June 9, 2023

Before: Richard C. Tallman, Richard R. Clifton, and Danielle J. Forrest, Circuit Judges.

Opinion by Judge Tallman 2 YBARRA V. GITTERE

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Robert Ybarra Jr.’s federal petition for a writ of habeas corpus in a case in which Ybarra, who was sentenced to death for a 1979 murder, argued that he is intellectually disabled and therefore cannot constitutionally be executed under Atkins v. Virginia, 536 U.S. 304 (2002). This court previously identified several errors in the Nevada Supreme Court’s reasoning but remanded for the federal district court to determine whether the Nevada Supreme Court’s overall intellectual disability determination was unreasonable. On remand, the district court concluded that it was not and thus denied Ybarra’s petition for relief. In this appeal, the panel held that Ybarra’s claim fails on the first prong (“Prong 1”) of the three prongs required for relief on an Atkins claim—he failed to establish that he suffered from significantly subaverage intellectual functioning. Ybarra argued that the Nevada Supreme Court unreasonably found that a 1981 IQ test was of “little value” because it was conducted well after Ybarra turned 18 and refused to consider any evidence outside the developmental period. The panel wrote that this argument is belied by a fair * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. YBARRA V. GITTERE 3

reading of the Nevada Supreme Court’s opinion, which gave three reasons for rejecting Ybarra’s arguments. First, the Nevada Supreme Court explicitly rejected Ybarra’s argument that the trial court had erred in crediting the 1981 IQ test over another expert’s testing. The second reason was that, based on “Ybarra’s school and other records, his writings, and evidence that he was malingering,” the record as a whole (irrespective of the various IQ test scores) portrays Robert Ybarra as a person who does not have significant subaverage intellectual functioning.” Finally, the Nevada Supreme Court said that it “need not decide the relevance, if any, of” the Flynn Effect, which causes average IQ test scores to inflate over time, “and the necessity of adjusting the 1981 IQ score” because that test occurred well after Ybarra turned 18. The panel wrote that even if the final reason was an unreasonable deviation from the clinical guidelines, the first reason was not. The panel wrote that the Nevada Supreme Court’s second reason for rejecting Ybarra’s criticism of the 1981 IQ test was also reasonable. The panel wrote that, taken in context, it is clear the Nevada courts did not base their Prong 1 determination on a “lay perception that Ybarra did not ‘look like’ a disabled person.” Ybarra’s second argument was that reliance on anything other than expert testimony amounts to a reliance on “stereotypes” about intellectual disability. The panel wrote that this is incorrect: every expert, including Ybarra’s experts, testified that, in forming their conclusions, they had interviewed Ybarra, reviewed records about Ybarra, or both. To the extent Ybarra