Whether a death row inmate with an intellectual disability claim under Atkins v. Virginia can seek federal habeas relief through a Rule 60(b) motion after exhausting state court remedies

No question identified. : No. In the Supreme Court of the Gnited States Robert Ybarra, Jr, Petitioner, v. William Gittere, et al, Respondents. Petitioner’s Application to Extend Time to File Petition for Writ of Certiorari CAPITAL CASE To the Honorable Elena Kagan, as Circuit Justice for the United States Court of Appeals for the Ninth Circuit: Petitioner Robert Ybarra respectfully requests that the time to file a Petition for Writ of Certiorari in this matter be extended for sixty (60) days, to and including February 11, 2024. The Court of Appeals for the Ninth Circuit issued its opinion on June 9, 2023. See App. A. The Ninth Circuit denied a timely petition for rehearing/rehearing en banc on September 14, 2023. See App. B. Petitioner’s current due date for filing a Petition for Writ of Certiorari is December 13, 2023. See Sup. Ct. R. 13.1, Sup. Ct. R. 13.3. Petitioner is filing this Application at least ten days before that date. See Sup. Ct. R. 13.5. BACKGROUND Mr. Ybarra was convicted of first-degree murder and sentenced to death for a crime that occurred in 1979. See Ybarra v. State, 679 P.2d 797 (Nev. 1984). Following state and federal post-conviction proceedings, Mr. Ybarra filed the federal habeas petition relevant to these proceedings in 2000, followed by an amended federal petition in 2002. See Ybarra v. Gittere, No. ECF Nos. 8, 41 (D. Nev.). Shortly after, Mr. Ybarra filed a petition in state court to exhaust his claims. Ybarra v. McDaniel, No. HC-0803002, (7th Jud. D. Ct. Nev.). In both petitions Mr. Ybarra raised a claim that he is ineligible for execution under Atkins v. Virgnia, 536 U.S. 304 (2002). The federal district court denied Mr. Ybarra’s request to stay his federal proceedings, so his state petition and federal petition proceeded in parallel. Mr. Ybarra’s federal petition was ultimately denied; the Ninth Circuit affirmed; this Court denied Mr. Ybarra’s Petition for Writ of Certiorari. See Ybarra v. McDaniel, 656 F.3d 984 (9th Cir. 2011); Ybarra v. Baker, No. 11-10652 (U.S. Oct. 9, 2012). Mr. Ybarra’s state petition was also denied, but the Nevada Supreme Court reversed for an evidentiary hearing on Mr. Ybarra’s Atkins claim. See Ybarra v. State, No. 43981 (Nov. 28, 2005). Following this evidentiary hearing, the state district court denied relief; the Nevada Supreme Court affirmed; this Court denied Mr. Ybarra’s Petition for Writ of Certiorari. See Ybarra v. Nevada, No. 11-6741 (U.S. Apr. 16, 2012). However, while this Court considered Mr. Ybarra’s Petition for Writ of Certiorari from his federal habeas proceedings, Mr. Ybarra filed a Motion for Relief from Judgment and Order, pursuant to Fed. R. Civ. P. 60(b), asking the district court to consider his Atkins claim on the merits because his Atkins claim had become exhausted in State court. See No. ECF No. 176. The district court ordered additional briefing, considered it, denied relief, but certified an issue for appeal to the Ninth Circuit. See id. at ECF Nos. 195, 228, 252. On appeal, the Ninth Circuit reversed and remanded. Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017). On remand, the district court again denied relief and again granted a certificate of appealability. No. ECF Nos. 320, 336. On appeal, the Ninth Circuit affirmed. The instant appeal comes to the Court from this affirmance. Ybarra v. Gittere, 69 F.4th 1077 (9th Cir. 2023). REASONS FOR GRANTING THE EXTENSION The time for filing a Petition for Writ of Certiorari should be extended for sixty days for the following reasons: 1. Randolph M. Fiedler, counsel of record for Petitioner has been unable to complete the Petition for Writ of Certiorari, despite diligent efforts to do so, due to his caseload and deadlines in other capital habeas matters. Specifically, since the Ninth Circuit’s denial of rehearing, Mr. Fiedler has had the following deadlines: in Williams v. Gittere, No. (D. Nev.), a Reply to Response to Motion to Alter or Amend Judgment Pursuant to Federal R. Civ. P. 59(e) on Se