- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Habeas Corpus
- Date Filed: 09-06-2011
- Case #: 07-99019
- Judge(s)/Court Below: Circuit Judge Tallman for the Court; Circuit Judges Silverman and Clifton
- Full Text Opinion
Ybarra appeals his third habeas corpus petition following failed state petitions for conviction relief. Firstly, he claims “the district court erred by dismissing as procedurally barred... claims in his... habeas petition...originally presented to the Nevada state courts.” The Court disagrees, finding Nev. Rev. Stat § 34.800's timeliness rule to be “an adequate and independent state procedural rule.” Next, Ybarra claims “the district court erred by dismissing as unexhausted his claim that the state court's denial of his motion for a change of venue deprived him of his... right to an impartial jury.” The Court agrees that because “the state courts ha[d] in fact ruled on its merits,” that claim had been exhausted; however, the merits of the claim support its denial. Third, the Court considers “whether the district court erred... by holding that a penalty-phase jury instruction given on an aggravating factor involving 'depravity of mind,' while unconstitutional, was a harmless error.” The Court affirms denial of this claim, because the instruction did not have “a substantial and injurious effect or influence on the jury's decision to impose the death sentence.” Next, Ybarra appeals denial of COA certification for three of his claims. The Court affirms two of these denials based on Ybarra's failure to meet his burden of proving their unreasonableness. The Court “grant[s] the COA [for the remaining claim] because the district court's dismissal for failure to exhaust was incorrect.” They subsequently find that this claim fails on its merits. Finally, the Court considers “whether the cumulative effect of errors in Ybarra's state court proceedings warrants habeas relief,” determining that “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.'” AFFIRMED.