Ybarra, Jr. (Robert) Vs. Warden (Death Penalty-Pc)

IN THE•SUPREME COURT OF THE STATE OF NEVADA

ROBERT YBARRA, JR., No. 72942 Appellant, vs. TIMOTHY FILSON, WARDEN, ELY STATE PRISON; AND ADAM P. FILED LAXALT, NEVADA ATTORNEY SEP 1 3 2019 GENERAL, ELIZABETH A. BROWN Res • ondents. CLERK OF SUPREME COURT BY CN DEPUTY c=C e)r

ORDER OF AFFIRMANCE This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Seventh Judicial District Court, White Pine County; Steve L. Dobrescu, Judge. Appellant filed his petition on January 11, 2017, more than thirty years after the remittitur issued on appeal from the judgment of conviction. Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984). The petition was therefore untimely filed. See NRS 34.726(1). Moreover, appellant acknowledges that he previously sought postconviction relief. The petition was therefore successive to the extent it raised claims that were previously litigated and resolved on their merits, and it constituted an abuse of the writ to the extent it raised new claims. See NRS 34.810(2). Accordingly, the petition was procedurally barred absent a demonstration of good cause and actual prejudice, NRS 34.726(1); NRS 34.810(3), or a showing that the procedural bars should be excused to prevent a fundamental miscarriage of justice, Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).

Appellant argues that he demonstrated good cause and prejudice sufficient to excuse the procedural bars, and that a fundamental miscarriage of justice would result if his petition was not considered, because Hurst v. Florida, 136 S. Ct. 616 (2016), set forth new retroactive rules that: (1) require trial courts to instruct jurors that the State must prove that the aggravating circumstances are not outweighed by the mitigating circumstances beyond a reasonable doubt, and (2) prohibit the reweighing of aggravating and mitigating circumstances when an aggravating circumstance is stricken by a reviewing court. We disagree. See Castillo v. State, 135 Nev., Adv. Op. 16, 442 P.3d 558 (2019) (discussing death-eligibility in Nevada and rejecting the arguments that Hurst announced new law relevant to the weighing component of Nevada's death penalty procedures or to appellate reweighing); Jeremias v. State, 134 Nev. 46, 57-59, 412 P.3d 43, 53-54 (rejecting the argument that Hurst announced new law relevant to the weighing component of Nevada's death penalty procedures), cert. denied, 139 S. Ct. 415 (2018). Appellant also argues that the jury was not adequately instructed regarding the "depravity of mind" aggravating circumstance. This claim is waived as it could have been raised in a prior proceeding, and appellant does not explain why he has good cause to raise it now. See NRS 34.810(1)(b). To the extent he argues that the error renders him actually innocent, we disagree. See Mitchell v. State, 122 Nev. 1269, 1273-74, 149

SUPREME COURT OF NEVADA 2 (0) 1947A Oa.

P.3d 33, 36 (2006) ("Actual innocence means factual innocence, not mere legal insufficiency." (internal quotation marks and alterations omitted)). Having concluded that no relief is warranted, we ORDER the judgment of the district court AFFIRMED.

pì , J. J. Pickering Hardesty

-9-otet—star-77 Parraguirre Stiglich , J.

• • 1 ) J. 1/4. .464.64. , J. Cadish Silver

cc: Hon. Steve L. Dobrescu, District Judge Federal Public Defender/Las Vegas Attorney General/Carson City White Pine County District Attorney White Pine County Clerk

SUPREME COURT OF NEVADA 3 (0) I947A ADD