Richard Hurles v. Charles L. Ryan

dissenting:

Today the majority offers a new way to evade AEDPA deference: make an unsupported — and unsupportable — assertion that the state court’s fact finding process is “unreasonable” for purposes of § 2254(d)(2). 1

*793 In this case, the state judge resolved a recusal motion based on the judge’s own understanding of whether her impartiality might be questioned. Nothing about that is unusual: federal courts, including this one, uniformly adopt this approach. See, e.g., Suever v. Connell, 681 F.3d 1064, 1065 (9th Cir.2012); see also Miles v. Ryan, 697 F.3d 1090, 1090 (9th Cir.2012). Yet the majority notes that the state judge did not hold an evidentiary hearing on the petitioner’s claim that recusal was appropriate, and concludes that “[a]ny appellate court to whom this defect was pointed out would be unreasonable in holding that [the state judge’s] fact-finding process was adequate.” Maj. op at 791.

Of course this conclusion is wrong. Worse, this conclusion is likely to work mischief by casting doubt on whether state and federal judges can ever appropriately make recusal decisions without first holding evidentiary hearings. Making this conclusion even more absurd, the…

Opinion by Judge D.W. NELSON; Dissent by Judge IKUTA.

*775 ORDER

The opinion filed January 18, 2013, and appearing at 706 F.3d 1021 , is withdrawn, Carver v. Lehman, 558 F.3d 869, 878-79 (9th Cir.2009), and is replaced by the opinion filed concurrently with this order. Our prior opinion may not be cited as precedent to any court. The parties may file a petition for rehearing and rehearing en banc with respect to the opinion filed together with this order.

IT IS SO ORDERED.

OPINION

Petitioner Richard D. Hurles appeals the district court’s denial of his federal habeas petition challenging his conviction for capital murder and the imposition of his death sentence. Hurles argues that the district court erred in denying his claims of judicial bias and ineffective assistance of sentencing and appellate counsel, and in finding various claims procedurally defaulted. We remand for an evidentiary hearing on Hurles’s claim of judicial bias. We also grant in part Hurles’s motion for a remand pursuant to Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012), and remand for consideration of appellate counsel’s failure to challenge the trial court’s denial of neurological…

I. Background

Hurles, on parole after serving nearly fifteen years for prior crimes, went to the library in Buckeye, Arizona on a November afternoon in 1992. State v. Hurles, 914 P.2d 1291, 1293 (1996) (en banc). He attacked librarian Kay Blanton by attempting to rape her and then stabbing her thirty-seven times. Id. Hurles left the library, cleaned himself up, discarded his bloody clothes and fled on a bus to Las Vegas, Nevada. Id. at 1294. The state charged Hurles with burglary, first-degree murder, first-degree felony murder and attempted sexual assault. Id. at 1293.

The court appointed an attorney to represent Hurles, an indigent. That attorney moved for the appointment of co- counsel when the State decided to seek the death penalty. Defense counsel cited numerous reasons necessitating co- counsel, among them, the many witnesses, the State’s intention to utilize forensic experts, the need to maintain a productive client relationship and the dense and detailed preparation necessary for both phases of trial. The trial court summarily denied the motion.

Defense counsel brought a petition for special action in the Arizona Court of Appeals. The petition challenged the denial of…