Robert Ybarra, Jr. v. William Gittere ( 2023 )

FOR PUBLICATION
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’s experts relied on faulty
evidence (i.e., false statements by Ybarra during testing) or
failed to consider evidence (i.e., records suggesting Ybarra
was not intellectually disabled) it was not unreasonable to
4 YBARRA V. GITTERE
find that their conclusions were invalid—especially since the
trial court also considered Test of Memory Malingering
(“TOMM”) results. The panel wrote that even if the Nevada
Supreme Court gave little weight to both the 1981 IQ test
and the TOMM test, the Prong 1 finding is still not
unreasonable.
Because the panel found that the Nevada Supreme
Court’s Prong 1 determination was reasonable, the panel did
not consider the second and third Atkins prongs or the related
procedural history.
COUNSEL
Randolph Fiedler (argued), Hannah D. Nelson, and Joanne
L. Diamond, Assistant Federal Public Defenders; Rene L.
Valladares, Federal Public Defender of the District of
Nevada; Federal Public Defenders’ Office; Las Vegas,
Nevada; for Petitioner-Appellant.
Jeffrey M. Conner (argued), Deputy Solicitor General;
Heather D. Procter, Deputy Attorney General; Aaron D.
Ford, Attorney General of Nevada; Office of the Nevada
Attorney General; Carson City, Nevada; for Respondent-
Appellee.
YBARRA V. GITTERE 5
OPINION
TALLMAN, Circuit Judge:
The State of Nevada sentenced Robert Ybarra to die for
brutally raping and murdering 16-year-old Nancy Griffith in
1979. Ybarra pled not guilty by reason of insanity but was
convicted by the jury after a trial in the District Court for
White Pine County in Ely, Nevada. Ybarra argues that he is
intellectually disabled and therefore cannot constitutionally
be executed under Atkins v. Virginia, 536 U.S. 304 (2002).
The Nevada trial court held a hearing on Ybarra’s Atkins
claim and found he was not intellectually disabled, and the
Nevada Supreme Court affirmed. Ybarra filed a petition for
a writ of habeas corpus in federal district court which is
subject to the restrictions of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254.
Ybarra argues that the Nevada Supreme Court’s
determination that he is not intellectually disabled is
unreasonable under § 2254(d)(2).
We previously identified several errors in the Nevada
Supreme Court’s reasoning but remanded for the federal
district court to determine whether the overall intellectual
disability determination was unreasonable. See Ybarra v.
Filson (Ybarra IV), 869 F.3d 1016, 1026 (9th Cir. 2017). On
remand, the federal district court concluded that it was not
and thus denied Ybarra’s petition for relief. We agree and
affirm. Because we ultimately conclude that Ybarra’s Atkins
claim fails on the first prong—that he failed to establish that
he suffered from significantly subaverage intellectual
functioning—we do not consider the second and third Atkins
prongs or the related procedural history. See Apelt v. Ryan,
6 YBARRA V. GITTERE
878 F.3d 800, 837 (9th Cir. 2017) (stating that a petitioner
must meet all three Atkins prongs to prevail on his claim).
Pursuant to § 2253(c), the district court granted a
certificate of appealability on the following issue: “Whether
[the district] court erred in deferring, under 28 U.S.C. §
2254(d), to the state court’s finding that petitioner is not
intellectually disabled as contemplated by Atkins v. Virginia,
536 U.S. 304 (2002), and its progeny?”
BACKGROUND
As recounted in prior opinions, this case has a complex
and protracted history spanning 42 years. There have been
several rounds of review in both state and federal courts.1
While we have attempted to limit our discussion to factual
and procedural matters relevant to Ybarra’s Atkins claim, our
summary remains lengthy.
A
1
On September 29, 1979, two fishermen from Ely,
Nevada, found sixteen-year-old Nancy Griffith lying on an
unpaved road near that town. Ybarra v. State (Ybarra I), 679
P.2d 797, 798 (Nev. 1984). Nancy’s body was badly burned,
but she was still alive. Id. at 798-99. Nancy told a sheriff’s
deputy that she had been raped by a man in a red truck who
worked north of where she was found. Id. She died the next
day. Id.1
See generally Ybarra v. State, 679 P.2d 797, 798 (Nev. 1984); Ybarra
v. McDaniel, 656 F.3d 984 (9th Cir. 2011); Ybarra v. Baker, No. 3:00-
cv-0233, 2013 WL 5567586 (D. Nev. Oct. 8, 2013); Ybarra v. Filson,
869 F.3d 1016 (9th Cir. 2017).
YBARRA V. GITTERE 7
The investigation into Nancy’s murder revealed that on
the evening of September 28, Nancy had met Robert Ybarra
in Ely. Id. Ybarra worked on an oil rig near town and had
driven Nancy and her friend around in his truck. Id. After
her friend had left, Ybarra drove Nancy outside Ely where
he raped and attempted to murder her. See id. Ybarra was
arrested and charged with first degree murder, first degree
kidnapping, battery with intent to commit sexual assault, and
sexual assault. Id. at 798. At his state court trial, Ybarra’s
only defense was insanity. Id. at 799. It failed. Ybarra was
convicted by a jury and sentenced to three consecutive life
sentences and death. Id. at 799-800.
2
Ybarra was born in Sacramento, California, on July 20,
1953. His mother was either 15 or 16 when he was born, and
he had three younger brothers and one younger sister.
Ybarra’s development was apparently fairly normal until age
9, when he was struck in the forehead by a railroad tie being
used as a swing. After the head injury, Ybarra suffered
migraines, and was prescribed various medications
including Mebaral, a barbiturate which has sedative and anti-
convulsant effects. Ybarra also suffered from auditory
hallucinations and depression and started using drugs and
alcohol.
By age 14, Ybarra was falling behind in school. Other
students bullied him, including by calling him a “retard” on
a daily basis. His doctor prescribed an amphetamine.
Ybarra eventually transferred schools due to “peer problems
and academic failure” before ultimately dropping out of high
school entirely in 1969 at age 15. Ybarra instead attended
night school, worked during the day, and received an adult
education diploma just prior to age 19. Ybarra also enlisted
8 YBARRA V. GITTERE
in the U.S. Marine Corps. Mental testing conducted by the
military showed that Ybarra’s intelligence was “dull
normal” or “borderline,” but he was found fit for duty. He
was later discharged for homosexual conduct. Ybarra
attempted to re-enlist in the Marine Corps but was
recognized and kicked out. He also enlisted in the National
Guard but was discharged again due to asthma.
Around 1974, Ybarra moved to Oregon where he met a
woman who would later become his wife. They moved back
to Sacramento where Ybarra’s wife became pregnant;
however, in 1979 she left him and returned to Oregon.
Ybarra then worked in Montana before later moving to Ely
in September of 1979. Ybarra worked throughout this period
and was employed at the time of Nancy’s murder. He was
then 26 years old.
B
On June 20, 2002, the United States Supreme Court
decided Atkins v. Virginia, holding that the execution of
intellectually disabled individuals violates the Eighth
Amendment’s prohibition on cruel and unusual
punishment.2 536 U.S. at 321. However, Atkins recognized
that there was still “serious disagreement” about who
qualifies as intellectually disabled and “le[ft] to the State[s]
the task of developing appropriate ways to enforce the
constitutional restriction.” Id. at 317 (second alteration in
original) (quoting Ford v. Wainwright, 477 U.S. 399, 416-
17 (1986)).
2
When Atkins was decided, courts and medical groups used the term
“mental retardation.” Medical authorities have subsequently adopted the
term “intellectually disabled.” We adopt the modern terminology,
except when directly quoting from older documents.
YBARRA V. GITTERE 9
To comply with Atkins, the Nevada Legislature in 2003
adopted Nevada Revised Statute section 174.098.3 See
Ybarra v. State (Ybarra II), 247 P.3d 269, 273 (Nev. 2011).
That statute provides that a defendant who is intellectually
disabled may file a motion to strike the death penalty. Nev.
Rev. Stat. § 174.098(1), (6). “The defendant has the burden
of proving by a preponderance of the evidence that the
defendant is intellectually disabled.” § 174.098(5)(b). The
statute establishes a three-pronged test for intellectual
disability:
(1) “significant subaverage general intellectual
functioning[;]”
(2) “which exists concurrently with deficits in adaptive
behavior[;]” and
(3) which “manifested during the developmental
period.”
§ 174.098(7). This definition is similar to the clinical
definition used by the American Association on Intellectual
and Developmental Disabilities (AAIDD)4 and the
American Psychiatric Association (APA). Ybarra II, 247
P.3d at 274.
We first discuss the evidence presented at Ybarra’s
Atkins hearing, the state trial court’s ruling, and the Nevada
3
The Nevada legislature updated this statute in 2013 and in 2015 simply
to remove the outdated language “mentally retarded” and replace it with
“intellectually disabled.” The statute remains identical in all other
respects. Compare Nev. Rev. Stat. Ann. § 174.098 (2013), (2015) with
Nev. Rev. Stat. Ann. § 174.098 (2003).
4
Previously called the American Association on Mental Retardation
(AAMR).
10 YBARRA V. GITTERE
Supreme Court’s opinion affirming that ruling. We then turn
to our previous opinion, Ybarra v. Filson (Ybarra IV), 869
F.3d 1016 (9th Cir. 2017), and the federal district court’s
ruling on remand.
1
After the adoption of section 174.098, Ybarra filed a
motion to strike the death penalty. In April 2008, the Nevada
state trial court held a two-day evidentiary hearing on
Ybarra’s motion. The trial court (Hon. Steve L. Dobrescu)
considered new evidence from two experts who testified on
behalf of Ybarra (Drs. David Schmidt and Mitchell Young)
and one who testified on behalf of the state (Dr. Ted Young).
The trial court also considered roughly 3,000 pages of
written exhibits.
A
Dr. David Schmidt, a licensed clinical psychologist, was
initially retained by Ybarra’s counsel in 2000 to help
develop mitigation evidence but, after Atkins was decided,
he was asked to testify about whether Ybarra was
intellectually disabled. Dr. Schmidt administered the
Wechsler Adult Intelligence Scale III (WAIS III) test and
other intelligence tests but conceded his testing was
“problematic . . . at best” because of Ybarra’s “problems
with anxiety and . . . hallucinations and various things that
were going on during the time of the testing.” The WAIS III
administered by Dr. Schmidt revealed Ybarra’s IQ was 60.
According to Dr. Schmidt, after accounting for measurement
error in IQ scores, a score of 75 or below indicates the
reduced level of intellectual functioning associated with
intellectual disability. Dr. Schmidt opined that it would be
difficult but not impossible for an individual to fake
intellectual disability on an IQ test.
YBARRA V. GITTERE 11
Dr. Schmidt also concluded that Ybarra suffered from
deficits in adaptive behaviors because he had difficulty in
school, had been bullied by classmates, lacked social skills,
could not hold a job, had never had a job with more than
minimum wage pay, was unable to remain in the military,
and was not able to live on his own. For example, Dr.
Schmidt cited a 1969 letter from a doctor who opined that,
at age 16, Ybarra should have received a medical exclusion
from school because he had “gone about as far as he can go
within [the] limits of his intellectual and emotional
capabilities.” Dr. Schmidt concluded that Ybarra’s adaptive
deficits and significantly subaverage intellectual functioning
had manifested in his “developmental years” and offered his
professional opinion that Ybarra was “mentally retarded.”
Dr. Schmidt also testified about an IQ test that Ybarra
had been given in 1981 by Dr. Martin Gutride while
Ybarra’s competency was being evaluated prior to his trial.
This test showed Ybarra’s IQ was 86. Dr. Schmidt testified
that unlike the newer WAIS III test he administered to
Ybarra, the WAIS test administered in 1981 was 26 years
old at the time it was administered, and therefore had been
affected by the “Flynn Effect.” Because IQ is a measure of
relative rather than absolute intelligence, the Flynn Effect
causes average IQ test scores to “inflate” over time, meaning
that IQ tests must be periodically “re-normed” to ensure they
are accurate. Dr. Schmidt suggested that the failure to re-
norm the test meant Ybarra’s 1981 score could have been
artificially inflated by as much as 15 points. Dr. Schmidt
also criticized the 1981 test because Dr. Gutride’s intern had
assisted with the testing.
In response to objections and cross-examination from the
state, Dr. Schmidt agreed that an earlier version of his expert
report included a “bold print” disclaimer stating that the
12 YBARRA V. GITTERE
WAIS III test he had administered “may underestimate
[Ybarra’s] actual intellectual functioning” because of “the
severe distress” testing caused Ybarra. This disclaimer was
apparently removed from the final report. Later, Dr.
Schmidt testified that he had “good confidence” in his
testing but also seemed to equivocate: “[A]s I went back and
reviewed post-Adkins [sic], this was a case to me that may or
may not fit the standard, but certainly bears looking at
further.” Dr. Schmidt also admitted that if someone has
taken multiple IQ tests, the higher score generally controls
because it is not possible to fake a higher score. With respect
to the 1981 IQ test, administered by Dr. Gutride, Dr. Schmidt
conceded he could not “express an opinion about the validity
of that test” with professional certainty.
The state further cross-examined Dr. Schmidt about the
evidence he reviewed to reach his conclusions, including the
military test, which showed Ybarra’s intelligence was “dull
normal”; Ybarra’s marriage and the household he formed
with his wife; and Dr. Schmidt’s failure to interview
Ybarra’s prison guards or review prison records. The state
also cross-examined Dr. Schmidt about Ybarra’s school
records, including a letter from Ybarra’s seventh-grade
teacher, which stated that he did not recall Ybarra “having
any learning problems.” Dr. Schmidt was generally
unwilling to give any ground on cross-examination. For
example, when asked about the teacher’s letter, Dr. Schmidt
suggested it was of little value because it was based on a 35-
year-old recollection. When the state pointed out that Dr.
Schmidt had relied on the 35-year-old recollections of
Ybarra’s family members, Dr. Schmidt responded that the
teacher only saw Ybarra “for 50 minutes at a time in a class
of 35 students.”
YBARRA V. GITTERE 13
B
Ybarra’s second expert witness was Dr. Mitchell Young,
a psychiatrist. As Dr. M. Young started to testify, the state
asked “what is that note pad that you’re reading from?” Dr.
M. Young explained that he had not seen “the applicable
legal standard relevant to matters before the court until
yesterday morning” and “was not familiar” with the
language of Atkins. Ybarra’s counsel explained that Dr. M.
Young was asked to “think in terms of what the Supreme
Court noticed or held why those with mental retardation are
barred from execution” and “address the concept of adaptive
deficits in that context.” Dr. M. Young then clarified that he
was not intending to be a “substitute decision maker” for the
court because “legal matters and diagnostic matters don’t
have . . . a one-to-one correspondence.”
Dr. M. Young’s report indicates that he administered a
Survival Skills Quotient (SSQ) test to Ybarra and obtained a
score of 79. The SSQ is a “test of adaptive behavior,” and
the raw score is “comparable to IQ.” Ybarra’s score was “in
the borderline range of [intellectual disability].” Dr. M.
Young also administered a test called the Rare Symptoms
Scale, which is designed to detect malingering. Ybarra had
a “markedly elevated” score on this test, and “tended to
endorse items that untrained individuals are likely to identify
as obvious signs of a major mental illness.” The report
nonetheless concludes that Ybarra “suffered and continues
to suffer deficits in adaptive functioning” prior to age 18. At
the hearing, Dr. M. Young testified that, to prepare his
report, he had interviewed Ybarra and reviewed documents,
including Dr. Schmidt’s report, but that he could not reach a
conclusion about whether Ybarra was intellectually disabled
based solely on this evidence.
14 YBARRA V. GITTERE
However, Dr. M. Young then said that he wanted to
change his conclusion from that offered in his written expert
report. Dr. M. Young had originally concluded that Ybarra
was in the “mild to borderline mentally retarded range”
based in part on the 1981 IQ score and Ybarra’s adaptive
deficits. However, based on what he had just learned from
listening to Dr. Schmidt’s testimony about the impact of the
Flynn Effect and other issues with the 1981 test, he now
believed that Ybarra qualified as intellectually disabled
under the AAMR and APA standards. Dr. M. Young then
opined that Ybarra suffered from adaptive behavioral
deficits prior to age 18. Finally, Dr. M. Young testified that
a 1991 medical report and Dr. Schmidt’s testing indicated
Ybarra had suffered from a brain injury during the
developmental period.
On cross-examination, the state attacked the data on
which Dr. M. Young had relied to form his conclusions. For
example, Dr. M. Young agreed that his opinion would
change again if Dr. Schmidt’s test scores were erroneous.
Dr. M. Young also testified about Ybarra’s past statements
which indicated that he was malingering, such as a statement
Ybarra made in 1991 about how he never thought he would
end up “having to act crazy” and a statement Ybarra made in
1981 about how he did not want to die by execution and
would fight to stay alive. Dr. M. Young conceded that he
had considered the possibility that Ybarra was faking his
symptoms but insisted that malingering and intellectual
disability “can co-exist and frequently do.”
C
The state called Dr. Theodore Young, a licensed
psychologist, to testify about his objective testing of
Ybarra’s cognitive ability. Dr. T. Young interviewed Ybarra
YBARRA V. GITTERE 15
and then administered objective tests of Ybarra’s cognitive
ability, including an abbreviated WAIS III test. The initial
results of the objective testing were “bizarre” and not “in any
way typical of patients” that Dr. T. Young sees. This caused
Dr. T. Young to suspect Ybarra was malingering. For
example, Dr. T. Young administered the “Rey Complex
Figure” test, which involves copying lines from a picture.
Ybarra’s performance on this test was so poor that it was
impossible to score. Dr. T. Young noted that he had
administered this test over 10,000 times, and that Ybarra’s
results were worse than those seen in Alzheimer’s patients
or among those with similarly debilitating diseases. Dr. T.
Young also observed that Ybarra was apparently unable to
spell two-, three-, and four-letter words, which was
inconsistent with past samples of Ybarra’s writing.5
Dr. T. Young went on to test Ybarra’s intelligence using
the abbreviated WAIS III. He found Ybarra’s IQ was 66,
which suggested “mild mental retardation.” However, Dr.
T. Young testified that the result was “not even close to
being valid” because of Ybarra’s malingering. Dr. T. Young
testified that he also administered the “Test of Memory
Malingering” (TOMM). The TOMM results suggested that
Ybarra was malingering. Dr. T. Young testified that while
some literature urges that a lower cut-off score should apply
when the TOMM is used to test for malingering among a
person who may be intellectually disabled, Ybarra’s score
was well below even the lower threshold advocated by some
5
Ybarra argues the trial court’s order misquotes Dr. T. Young’s
testimony about the results of the spelling test. However, the trial court
noted that the official transcripts of the proceedings have significant
errors and relied at least in part on the videotaped transcript of
proceedings.
16 YBARRA V. GITTERE
studies. Dr. T. Young was also asked about Dr. M. Young’s
report that Ybarra had “a markedly elevated score” on a test
of rare psychiatric symptoms and agreed that this unusual
result was similar to his own experience testing Ybarra.
Dr. T. Young strongly criticized Dr. Schmidt’s testing of
Ybarra, which he said did not meet APA standards because
Dr. Schmidt failed to test for malingering. Dr T. Young
specifically concluded that Dr. Schmidt’s test was “invalid”
because it was “absolutely clear . . . that the question of
[Ybarra’s] effort was not adequately addressed.” Dr. T.
Young also testified about the 1981 IQ test score of 86
obtained by Dr. Gutride and stated that this score put Ybarra
“well above” the range for intellectual disability, which was
“as high as 75.” Dr. T. Young testified that while he had
heard Dr. Schmidt’s testimony that the 1981 test
administered to Ybarra was obsolete, in fact the revised
WAIS had not been released until after Ybarra’s 1981 test,
meaning Ybarra received the most current test then
available. Finally, Dr. T. Young testified that Dr. Gutride’s
use of an intern to conduct the 1981 testing was not
problematic because Dr. Gutride co-signed the report and
remained fully professionally responsible for the finding.
On cross-examination, Dr. T. Young conceded that he
had not evaluated the other two prongs required to establish
intellectual disability—adaptive deficits and onset during
the developmental period—because without a valid IQ test
within the necessary range, “these other prongs don’t
matter.” However, Dr. T. Young noted he had reviewed the
same documentation about Ybarra that was available to Dr.
M. Young and Dr. Schmidt and criticized their failure to
objectively test Ybarra’s adaptive functioning. Dr. T. Young
also admitted that he had initially produced his report as an
“interim” report, which addresses only his objective testing
YBARRA V. GITTERE 17
of Ybarra’s intellectual functioning because the background
information about Ybarra had not yet been made available to
him.
Dr. T. Young further agreed that he had not read the most
current AAMR manual and had last reviewed the 1992
edition. He testified that he had read the portions of the
current manual that were “reprinted in the Atkins decision”
because he had reviewed that decision while preparing for
his testimony. Ybarra’s attorney also cross-examined Dr. T.
Young about the studies supporting the use of the TOMM
test to identify feigned intellectual disability. Ybarra’s
counsel and Dr. T. Young disagreed about the meaning of
the treatise on which Dr. T. Young relied; the attorney
pointed out that the treatise did not recommend use of the
TOMM to identify feigned intellectual disability; Dr. T.
Young contended that the treatise supported his conclusion
that Ybarra’s low score on the TOMM indicated
malingering.
2
The Nevada district judge concluded that Ybarra failed
to demonstrate by a preponderance of the evidence that he
was intellectually disabled. The state court started by
defining the relevant developmental period for the purposes
of section 174.098. Based on his review of other states’
laws, expert testimony, and the AAMR standards, Judge
Dobrescu determined that the relevant developmental period
was up to age 18.. However, Judge Dobrescu went on to
consider evidence about Ybarra’s intellectual functioning
and adaptive behavioral deficits from outside that period
because all the aforementioned testing occurred while
Ybarra was in his mid-twenties or older.
18 YBARRA V. GITTERE
With respect to Prong 1, Ybarra’s intellectual
functioning, Judge Dobrescu determined that Ybarra failed
to show the onset of significant subaverage intellectual
functioning during the developmental period. Judge
Dobrescu noted that when Ybarra was tested by the Marine
Corps, intelligence testing showed he was “dull normal” or
“borderline,” which is not intellectually disabled. The trial
court credited the 1981 IQ test administered by Dr. Gutride,
which had showed Ybarra’s IQ was 86. The court also
considered other medical records, interviews, and testing
conducted by psychiatrists and psychologists after Ybarra’s
arrest, which suggested that his intelligence was below
average but not intellectually disabled.
Judge Dobrescu rejected Dr. Schmidt’s testimony about
the impact of the Flynn Effect on the 1981 IQ test, finding
that “numerous courts have rejected the notion of adjusting
IQ scores to accommodate the Flynn Effect.” However, the
court noted that even after adjusting for the Flynn Effect,
Ybarra’s IQ would be 78—i.e., not intellectually disabled.
Judge Dobrescu also rejected Dr. Schmidt’s 2002 IQ test
showing Ybarra’s IQ was 60, noting the original “bold-faced
disclaimer” in Dr. Schmidt’s report which suggested
Ybarra’s IQ could have been underestimated and Dr.
Schmidt’s failure to employ any kind of test for malingering.
The court noted that Dr. T. Young had specifically criticized
Dr. Schmidt’s failure to test for malingering and that Dr.
Schmidt had been recalled to the stand but failed to respond
to that criticism. Finally, the court rejected Dr. Schmidt’s
criticism of the 1981 IQ test as “pure speculation” and
concluded that the 1981 score was supported by
contemporaneous records from other evaluators who
believed Ybarra was “dull normal or borderline” but not
“mentally retarded.”
YBARRA V. GITTERE 19
Judge Dobrescu then concluded that Ybarra was likely
malingering. While recognizing that malingering does not
exclude the possibility that Ybarra had an intellectual
disability, the court concluded that it must be considered in
evaluating intellectual functioning. The court cited various
medical records and opinions which supported Ybarra’s
history of malingering, including:
• A 1979 examination from a Doctor Lynn Gerow,
who administered the Minnesota Multiphasic
Personal Inventory (MMPI), and concluded Ybarra
had “made an attempt to answer each question in a
positive manner to indicate psychopathology.”
• A 1981 letter from Doctor Donald Molde, who
concluded that Ybarra’s claims to suffer from
hallucinations were “due to extra medical
considerations” rather than mental illness.
• A 1981 letter from Doctor Richard Lewis, who, after
reviewing three MMPI profiles administered to
Ybarra, concluded that “the probability is very high”
that Ybarra had “deliberately faked the tests in a
pathological direction.”
• Ybarra’s 1981 statement to Doctor Gutride, while
being evaluated for competency to stand trial, that he
had “decided the best thing he could do was to pass
the Sanity Commission so he could get on with his
legal problems.” Ybarra then passed three
psychiatric examinations.
• A March 1981 letter from Ybarra, in which he
indicated that he would be “nuts soon from not taking
my meds,” and asked the recipient to “pray for me to
get a [not guilty by reason of insanity]” so that he
20 YBARRA V. GITTERE
could return to a mental health facility rather than
remain in jail. Judge Dobrescu observed that up to
that point, Ybarra had generally maintained he was
actually innocent of the murder.
• A 1985 progress note signed by a “Dr. Knapp,”
which indicated that Ybarra was “mentally ill” but
“tries to fake psychosis.”
• A 1991 progress note recording Ybarra’s statement,
made while in the prison mental health unit, that he
never thought he would end up in here “having to act
crazy.”
Judge Dobrescu also observed that Ybarra had requested
copies of his own medical records on several occasions,
repeatedly refused medication, and had written hundreds of
prison “kites” (which are “form[s] used by prison inmates to
communicate with staff . . . .”) and other correspondence
which showed a level of intelligence inconsistent with
intellectual disability. Richey v. Dahne, 807 F.3d 1202, 1205
n.3 (9th Cir. 2015). Some of Ybarra’s statements indicated
a level of sophistication about legal defenses. For example,
Ybarra questioned a doctor about multiple personality
disorder and mentioned that that he knew of a person who
had his case dismissed because he had that disorder. Judge
Dobrescu concluded that Dr. Gutride’s 1981 IQ test was
most likely to be valid because Ybarra had, at that point,
decided to put forward his best effort on the test so he could
move on with his case.
Finally, in discussing the expert testimony, the court
observed that Dr. Schmidt had testified that a person cannot
fake being smarter than they actually are on an IQ test. The
court also noted the results of Dr. T. Young’s spelling test
and concluded that Ybarra’s apparent inability to spell
YBARRA V. GITTERE 21
simple words was not consistent with letters and kites he had
written. Finally, the court discussed Dr. T. Young’s TOMM
test and his conclusion that there was “no valid IQ test result
. . . below 70 in the record.” Judge Dobrescu concluded that
the preponderance of evidence showed Ybarra “is not
significant [sic] subaverage intellectual functioning.”
3
Ybarra appealed to the Nevada Supreme Court, arguing
the trial court erred by holding that he had failed to show he
was intellectually disabled under section 174.098(7).
Ybarra II, 247 P.3d at 270. The Nevada Supreme Court first
construed the definition of “mentally retarded” in the statute.
Id. at 273-74. After examining the history of the statute, the
appellate court concluded that “[g]iven the similarities
between the statutory definition and the clinical definitions
of mental retardation, the AAMR and APA provide useful
guidance in applying the definition.” Id. at 274. Looking to
Prong 1—intellectual functioning—the state supreme court
concluded that “the clinical definitions indicate that
‘individuals with IQs between 70 and 75’ fall into the
category of subaverage intellectual functioning.” Id.(quoting Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 41 (4th ed. 2000)).
The appellate court then considered Ybarra’s challenges
to Judge Dobrescu’s decision, concluding it would “defer[]
to the court’s factual findings so long as those findings are
supported by substantial evidence and are not clearly
erroneous, but . . . review the legal consequences of those
factual findings de novo.” Id. at 276. The appellate court
described the record evidence, hearing testimony, and the
trial court’s decision at some length. Id. at 277-81. The
court then turned to Ybarra’s two main arguments. Ybarra
22 YBARRA V. GITTERE
argued that the trial court wrongly determined that he did not
have subaverage intellectual functioning under Prong 1
because it (1) “erroneously focused on the 1981 IQ test to
the exclusion of the IQ results Dr. Schmidt obtained” and (2)
“erroneously relied on the tests administered by the State’s
expert because he used improper testing instruments,
scoring, and administration techniques.” Id. at 281.
First, the Nevada Supreme Court found that the trial
court had not improperly focused on the 1981 IQ test. Id. at
281-83. Ybarra argued the trial court should not have relied
on the 1981 IQ score because, if it had been adjusted to
account for the Flynn Effect as suggested by Dr. Schmidt,
the adjusted score would suggest Ybarra was mildly
intellectually disabled. Id. at 281. The state high court held
that this argument failed for three separate reasons: First,
Judge Dobrescu had found Dr. Schmidt’s testimony about
the Flynn Effect “incredible” in light of sources that rejected
its application and other record evidence which supported
the “validity” of the 1981 IQ score. Id. at 282. Nevertheless,
the trial court had accounted for the Flynn Effect and, after
applying an adjustment, concluded Ybarra’s IQ was 78—
outside the range required for intellectual disability. Id. The
supreme court held this adjustment was “not without
foundation.” Id.The state high court gave two other reasons for rejecting
Ybarra’s argument. It noted that the trial court had also
considered other evidence in the record, such as Ybarra’s
“school and other records, his writings, and evidence that he
was malingering” and therefore “did not rely solely on the
1981 IQ test.” Id. Finally, the court observed that it did not
need to decide the relevance of the Flynn Effect “because the
1981 IQ test, as with all of Ybarra’s IQ tests, was
administered well after he turned 18 years of age. Therefore,
YBARRA V. GITTERE 23
this issue has little value in evaluating whether Ybarra
presented sufficient evidence to establish mental
retardation.” Id. at 282-83.
The Nevada Supreme Court then turned to Ybarra’s
argument that the trial court had improperly relied on the IQ
test and TOMM test administered by Dr. T. Young. Id. at
283. The court held that the trial court’s consideration of
Ybarra’s TOMM score did not require reversal. Id. The
Nevada Supreme Court reasoned that while the trial court
“clearly” considered the TOMM results, it also considered a
“wealth of other evidence in determining that Ybarra was
malingering,” such as his prison kites, medical progress
notes, and emphasized that “comments by mental health
professionals who evaluated Ybarra during his incarceration
indicated that their testing of Ybarra revealed malingering.”
Id. The state supreme court then added that “as with the
1981 IQ score, the TOMM score is of little value in
determining whether Ybarra met his burden of proving
significant subaverage intellectual functioning, as the
TOMM was administered well after Ybarra reached 18 years
of age.” Id. at 283. The Nevada Supreme Court found that
Ybarra had failed to show subaverage intellectual
functioning which manifested during the developmental
period. Id. at 283-84.
4
After the Nevada Supreme Court issued its decision,
Ybarra filed a motion to reconsider. This motion included
as a newly offered exhibit a report dated March 28, 2012, by
Dr. Stephen Greenspan, a psychologist and expert on
intellectual disability. Dr. Greenspan interviewed Ybarra,
spoke to Ybarra’s family members, and reviewed a number
of other materials. Dr. Greenspan’s report concluded that
24 YBARRA V. GITTERE
Ybarra “meets all three prongs of the definition of mental
retardation” under both the statutory and clinical definitions.
Dr. Greenspan’s report first argued that Ybarra has
significantly subaverage intellectual functioning based on
the results of the IQ tests administered by Drs. Schmidt and
T. Young. Dr. Greenspan opined that the 1981 IQ test
conducted by Dr. Gutride used outdated norms and that after
adjusting for the Flynn Effect, Ybarra’s score on the 1981 IQ
test would be 78—close to, but not below, “the clinically-
recommended ceiling of 75.” Dr. Greenspan also quoted one
of Dr. Schmidt’s colleagues, who (like Dr. Schmidt)
criticized Dr. Gutride for having an intern administer the test
to Ybarra.6 Finally, Dr. Greenspan suggested that Dr. T.
Young erred in using the TOMM to evaluate Ybarra for
malingering and contended the TOMM has never been
validated on low-IQ individuals.
The Nevada Supreme Court unanimously denied
Ybarra’s motion to reconsider but did not provide any
reasons for doing so and did not strike Dr. Greenspan’s late-
filed report from the record. Ybarra IV, 869 F.3d at 1020-
21.
5
In 2012, Ybarra again sought habeas relief from the
federal district court. Ybarra v. Baker, No. 3:00-cv-0233,
2013 WL 5567586, at *1 (D. Nev. Oct. 8, 2013). He filed a
motion for relief from judgment under Fed. R. Civ. P.
60(b)(6), asking the federal district court to set aside its prior
6
The Greenspan Report referenced reports by Drs. Mack and Warnick.
Those doctors filed reports which were stricken by the Nevada Supreme
Court and are not part of the state court record. See Ybarra IV, 869 F.3d
at 1020, 1029.
YBARRA V. GITTERE 25
judgment denying him habeas relief and consider the merits
of his Atkins claim. Id. The district court denied the motion
on the merits, finding that the Nevada Supreme Court’s
determination that Ybarra was not intellectually disabled
was not unreasonable under AEDPA. Id. at *8.
6
Ybarra appealed, and we vacated the district court’s
order. Ybarra IV, 869 F.3d at 1019. While we “express[ed]
no view as to whether the Nevada Supreme Court’s
intellectual disability determination was reasonable” under
AEDPA, we found that the district court had erred when it
“overlooked a number of instances where the Nevada
Supreme Court contradicted the very clinical guidelines that
it purported to apply.” Id. at 1019, 1023. We held that
Nevada Revised Statute section 174.098 had “incorporated
clinical guidelines and diagnostic manuals” in defining
intellectual disability well before the Supreme Court had
concluded that doing so was a constitutional requirement.
Id. at 1024. We then identified several errors in the Nevada
Supreme Court’s reasoning:
For example, it ignored evidence that Ybarra
was bullied in school on the ground that it
was irrelevant under Prong 2. The trial court
initially expressed concern over the notion
that “the victim [of bullying] . . . has the
problem,” and the Nevada Supreme Court
apparently agreed because it stated that
evidence of bullying does “little to
demonstrate adaptive behavior deficits.” But
the AAMR specifically lists “gullibility” and
an inability to “avoid[] victimization” as
examples of limited social adaptive skills.
26 YBARRA V. GITTERE
Similarly, under Prong 3, the Nevada
Supreme Court suggested that any diagnostic
test conducted after the age of 18 was “of
little value.” But the AAMR specifically
contemplates retrospective assessment when
there are no test scores available from the
developmental period.
Id. at 1026 (citations omitted).
In response to the state’s argument that Ybarra’s failure
to prove Prong 1 was dispositive, we agreed that the Nevada
Supreme Court’s malingering determination was reasonable
in light of Dr. T. Young’s testimony but remanded for the
district court to examine whether that finding “was the basis
for the Nevada Supreme Court’s determination under Prong
1.” Id. We observed that “the Prong 1 determination was
unreasonable to the extent that it was based on the court’s
lay perception that Ybarra did not ‘look like’ a disabled
person.” Id. at 1026-27. We explained that the “state may
be correct that the malingering determination constitutes an
‘independent basis’ for the intellectual disability
determination, thus rendering it reasonable under AEDPA.
Alternatively, Ybarra may be correct that lay stereotypes and
nonclinical factors infect the state court’s entire analysis,
thus rendering it unreasonable.” Id. (citation omitted). But
“[r]ather than passing on these issues in the first instance, we
[left] the task to the district court” to evaluate. Id. Finally,
we also concluded that the district court erred by refusing to
consider the Greenspan Report as part of the state court
record and directed it to consider the Report on remand. Id.
at 1027.
YBARRA V. GITTERE 27
7
On remand, the district court again took up the question
of Ybarra’s intellectual disability and found the Nevada
Supreme Court had not unreasonably determined Ybarra
failed to prove the first prong. The district court concluded
that the Nevada Supreme Court had not ruled as it did
because Ybarra did not “look like a disabled person.”
Rather, the state courts found that the only sub-75 IQ scores
in the record were invalid because of Dr. Schmidt’s
disclaimer as to the accuracy of his results and Dr. T.
Young’s testimony about the likelihood that Ybarra was
malingering. The state courts also credited Dr. Gutride’s
1981 IQ score and rejected Dr. Schmidt’s criticism of that
test because (1) the AAMR manual did not recommend
adjusting for the Flynn Effect, (2) an adjustment would still
leave Ybarra with an IQ of 78, and (3) Dr. Schmidt admitted
he “really could not talk about” the 1981 score’s validity.
Finally, the district court noted concerns with Dr.
Greenspan’s report that called into doubt his analysis of this
prong, including the fact that Dr. Greenspan filed two
versions of his report because the first one contained errors.
DISCUSSION
We are now asked to review the federal district court’s
analysis of the questions we remanded for it to consider,
namely, whether lay stereotypes and nonclinical factors
infected the state court’s entire analysis and how the
Greenspan Report should factor into that analysis. We
review de novo the federal district court’s review of the state
court’s decision. Ybarra IV, 869 F.3d at 1023. However,
under AEDPA, we may not grant Ybarra habeas relief unless
the state court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented
28 YBARRA V. GITTERE
in the State court proceeding.” § 2254(d)(2). A state court’s
factual determination of his intellectual functioning is not
unreasonable simply because we would have reached a
different conclusion. Dixon v. Shinn, 33 F.4th 1050, 1054
(9th Cir. 2022). “A petitioner challenging the substance of
the state court’s findings must show ‘that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the
record.’” Prescott v. Santoro, 53 F.4th 470, 479 (9th Cir.
2022) (quoting Hibbler v. Benedetti, 693 F.3d 1140, 1146
(9th Cir. 2012)). This “daunting standard” is “satisfied in
relatively few cases” but “is not impossible to meet.” Taylor
v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), overruled on
other grounds by Cullen v. Pinholster, 563 U.S. 170, 185
(2011).
If the state court’s determination of the facts was
unreasonable, we must then review Ybarra’s Atkins claim de
novo before we may grant habeas relief. See Maxwell v. Roe,
628 F.3d 486, 494-95 (9th Cir. 2010). Even if Ybarra’s
claim has merit, the United States Supreme Court has
recently suggested that a state prisoner is “never entitled to
habeas relief” unless he persuades the court that both “law
and justice require [it].” Shinn v. Ramirez, 142 S. Ct. 1718,
1731 (2022) (alteration in original) (quoting Brown v.
Davenport, 142 S. Ct. 1510, 1524 (2022)).
I
To prevail on his petition for habeas relief, Ybarra must
show that the Nevada Supreme Court unreasonably
determined that he failed to prove that (1) he had
significantly subaverage intellectual functioning; (2) he
suffered from adaptive behavioral deficits; and (3) those
symptoms manifested prior to age 18. Ybarra fails to make
YBARRA V. GITTERE 29
a showing that he had significantly subaverage intellectual
functioning. That is dispositive and defeats the basis of his
habeas claim.
Ybarra’s first argument that the determination is
unreasonable rests on a narrow reading of the Nevada
Supreme Court’s decision. Ybarra argues that the court
unreasonably found that the 1981 IQ test administered by Dr.
Gutride was of “little value” because it was conducted well
after Ybarra turned 18 and refused to consider any evidence
from outside the developmental period. Ybarra contends
that because we have already held that it would be an error
to disregard any testing conducted outside the
developmental period, the Nevada Supreme Court’s
determination of Prong 1 is unreasonable. Ybarra IV, 869
F.3d at 1026. Ybarra claims that while the state trial court
may have relied on the 1981 IQ test, the Nevada Supreme
Court declined to adopt that logic, and so could not have
relied on the 1981 test to find that Ybarra had failed to prove
Prong 1. Accordingly, Ybarra argues that the federal district
court erred in concluding that the Nevada Supreme Court
had “affirm[ed] the lower court’s reliance on the 1981 IQ
test that yielded a score of 86.”
This argument is belied by a fair reading of the Nevada
Supreme Court’s opinion. The sentences in the opinion that
Ybarra repeatedly cites are in fact only part of that court’s
response to Ybarra’s contention that the trial court erred by
(1) “disregarding” Dr. Schmidt’s IQ testing; (2) concluding
that the 1981 test “was valid”; and (3) failing to account for
the Flynn Effect. Ybarra II, 247 P.3d at 281. In fact, the
Nevada Supreme Court gave “three reasons” for rejecting
Ybarra’s arguments. Id. at 282. First, the court explicitly
rejected Ybarra’s argument that the trial court had erred in
crediting the 1981 IQ test over Dr. Schmidt’s testing:
30 YBARRA V. GITTERE
[T]he district court did not disregard Dr.
Schmidt’s testimony regarding the Flynn
effect. Rather, the court found the testimony
incredible considering (a) other sources that
either rejected the theory or did not demand
adjustments in IQ scores to account for it; and
(b) other evidence in the record supporting
the validity of the 1981 IQ score, including
evaluations from mental health professionals
and Ybarra’s military records reporting that
he was of dull-normal to borderline
intelligence. And although the district court
was “not convinced [that] the scientific
community is prepared to adjust the scores
according to the Flynn effect,” it nevertheless
considered the Flynn effect and concluded
that an adjustment for that effect reduced the
1981 IQ score to 78, which is outside the
range of mental retardation . . . . [That]
calculation was not without foundation.
Id. (emphasis added).
Only then did the Nevada Supreme Court proceed to give
two other, independent reasons for rejecting Ybarra’s
arguments. The second reason it gave for affirming the trial
court’s finding 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.” Id.Finally, the Nevada Supreme Court said that it “need not
decide the relevance, if any, of the Flynn effect and the
YBARRA V. GITTERE 31
necessity of adjusting the 1981 IQ score” because the 1981
IQ test occurred well after Ybarra turned 18. Id. at 282-83.
Even if this final reason was an unreasonable deviation
from the clinical guidelines, see Ybarra IV, 869 F.3d at 1026,
the first reason was not. The Nevada Supreme Court found
that the trial court had not erred in finding Dr. Schmidt’s
criticism of the 1981 IQ test “incredible” and found the
“validity” of that test was supported by the record. Ybarra
II, 247 P.3d at 282. And it affirmed the trial court’s finding
that, even accounting for the Flynn Effect, Ybarra’s 1981 IQ
score was still not below 75—which Ybarra concedes is
required to show significantly subaverage intellectual
functioning. Id. This was not unreasonable. Dr. Schmidt
admitted his own tests might underestimate Ybarra’s “actual
intellectual functioning.” Dr. T. Young defended the
validity of the 1981 IQ score in his testimony and criticized
Dr. Schmidt’s testing. The state court was free to “credit one
expert over another.” Apelt, 878 F.3d at 837.
The Nevada Supreme Court’s second reason for
rejecting Ybarra’s criticism of the 1981 IQ test was also
reasonable. As the court explained:
[T]he district court did not rely solely on the
1981 IQ test to determine that Ybarra had not
proven that he suffers from significant
subaverage intellectual functioning. As
explained above, the district court also
looked to Ybarra’s school and other records,
his writings, and evidence that he was
malingering. In fact, the district court
expressly observed in its order that “[t]he
record as a whole (irrespective of the various
IQ test scores) portrays Robert Ybarra as a
32 YBARRA V. GITTERE
person who does not have significant
subaverage intellectual functioning now or
during his developmental years.”
Ybarra II, 247 P.3d at 282. We were “troubled by this
statement” out of concern that it may have been “based on
the court’s lay perception that Ybarra did not ‘look like’ a
disabled person.” Ybarra IV, 869 F.3d at 1026-27.
However, we also suggested that to the extent that this
finding was informed by a determination that Ybarra was
malingering, it was reasonable. Id. at 1026.
As the federal district court noted on remand, the
quotation about the “record as a whole” is taken from a
section in the trial court decision titled “Malingering and
Other Evidence of Intellectual Functioning.” That section of
the state trial court’s decision notes that, when asked if he
saw evidence of malingering in records he reviewed to
prepare for his testimony, Dr. Schmidt mentioned only Dr.
T. Young’s report and “some issues” from the state
correctional medical center where Ybarra was evaluated for
competency. The state trial court then criticizes Dr. Schmidt
for ignoring numerous other pieces of evidence which
suggest malingering, including Ybarra’s 1979 and 1981
attempts to manipulate the MMPI, his 1991 statement about
“having to act crazy” in prison, and the conclusions of other
doctors that Ybarra was faking psychological symptoms. It
also discusses in passing Ybarra’s ability to “manipulate
health care professionals, attorneys, play scrabble,
backgammon, racquetball and volleyball, and his ability to
type, read medical literature, [and] write coherent
meaningful letters.” Finally, the trial court closed this
section by noting that Dr. T. Young’s testing, including the
TOMM test, suggested that Ybarra was malingering.
YBARRA V. GITTERE 33
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 IV,
869 F.3d at 1027. Parts of the trial court’s decision arguably
make this error, such as by discussing Ybarra’s ability to
play games and write letters. Ybarra II, 247 P.3d at 280; see
also Moore v. Texas (Moore II), 139 S. Ct. 666, 671 (2019)
(criticizing the appellate court for considering adaptive
strengths developed in prison). But most of the section of
the state trial court’s decision in question (1) finds that Dr.
Schmidt’s testimony and IQ testing is not credible because
he failed to adequately consider evidence that Ybarra was
malingering and (2) cites Dr. T. Young’s testimony to
conclude Ybarra was malingering. This was not
unreasonable; a finder of fact may consider the data an
expert relied on in reaching an opinion, see FED. R. EVID.
705, and “reject” expert testimony based on “the reasons
given for the opinion” and “the other evidence in the case.”
See NINTH CIR. MODEL CRIM. JURY INSTR. § 3.14 (2023); see
also Ochoa v. Davis, 50 F.4th 865, 903-04 (9th Cir. 2022)
(citing petitioner’s school records, social activities, and
criminal conduct in concluding he had failed to show
significant adaptive deficits). Courts are not required to
credit expert testimony. See Ochoa, 50 F.4th at 905; Apelt,
878 F.3d at 837-38; Cain v. Chappell, 870 F.3d 1003, 1023-
24 (9th Cir. 2017).
Ybarra’s second argument is that reliance on anything
other than expert testimony amounts to a reliance on
“stereotypes” about intellectual disability. For example,
Ybarra asserts repeatedly that the Nevada Supreme Court
erred in relying on a “wealth of other evidence” in
concluding that Ybarra was malingering, because “none of
the experts relied” on it in reaching a conclusion about
34 YBARRA V. GITTERE
intellectual functioning. But this is simply 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’s
experts relied on faulty evidence (i.e., false statements by
Ybarra during testing) or failed to consider evidence (i.e.,
records suggesting Ybarra was not intellectually disabled) it
was not unreasonable to find that their conclusions were
invalid—especially since the trial court also “considered the
TOMM results.” Ybarra II, 247 P.3d at 283. A court’s
intellectual disability determination must be informed by
clinical guidance, but “‘the views of medical experts’ do not
‘dictate’” the outcome. Moore v. Texas (Moore I), 581 U.S.
1, 13 (2017) (quotation omitted).
Finally, even if Ybarra is correct that the Nevada
Supreme Court gave little weight to both (1) the 1981 IQ test
and (2) the TOMM test, the Prong 1 finding is still not
unreasonable. As discussed, it was Ybarra’s burden to prove
Prong 1 by a preponderance of the evidence, which requires
an IQ score of 75 or below. See Nev. Rev. Stat. §
174.098(5)(b). There are only two such scores in the record:
Dr. T. Young’s, which he disclaimed as invalid, and Dr.
Schmidt’s score. The Nevada Supreme Court affirmed the
trial court’s finding that Dr. Schmidt’s testimony was not
credible, see Ybarra II, 247 P.3d at 279, 282, 284, and that
finding is likely entitled to double deference, see id. at 276(“Matters of credibility . . . remain . . . within the [trial]
court’s discretion.”); and was not unreasonable for the
reasons already discussed. Thus, even if the Nevada
Supreme Court gave little weight to the 1981 IQ score, the
absence of any valid sub-75 IQ would still mean Ybarra
failed to meet his burden.
YBARRA V. GITTERE 35
Dr. Greenspan’s report adds little in terms of intellectual
functioning. Dr. Greenspan recalculated the impact of the
Flynn Effect on the 1981 IQ test, and concluded that even
accounting for that effect, Ybarra’s IQ was 78—essentially
confirming that the trial court’s calculation was correct. Dr.
Greenspan’s report otherwise rehashes criticisms that were
already made by Dr. Schmidt: he repeats Dr. Schmidt’s
critiques of the 1981 IQ score and criticizes Dr. T. Young’s
use of the TOMM test for the same reasons that Dr. Schmidt
did. Finally, Dr. Greenspan’s report says virtually nothing
about the other evidence that Ybarra was malingering. As a
result, Ybarra’s Prong 1 argument still fails because no valid
IQ test has shown significantly subaverage intellectual
functioning. Because we find that the Nevada Supreme
Court’s Prong 1 determination was reasonable, we do not
consider Prongs 2 or 3 and Ybarra’s petition must be denied.
See Apelt, 878 F.3d at 837 (“To prevail on his Atkins claim,
[the petitioner] must meet all three prongs of the test for
intellectual disability.”).
CONCLUSION
Because the Nevada Supreme Court was not
unreasonable in finding that Ybarra had failed to prove he is
intellectually disabled by a preponderance of the evidence,
the district court’s denial of his federal petition for a writ of
habeas corpus was correct.
AFFIRMED.