Richard Hurles v. Charles L. Ryan

facts, opined that it 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, and observed that the absence of such HURLES V . RYAN

a hearing in this case was irrelevant because the allegations, if true, did not amount to a due process violation.

COUNSEL

Denise I. Young and Michael Aaron Harwin, Tucson, Arizona, for Petitioner-Appellant.

Terry Goddard, Attorney General of Arizona, Phoenix, Arizona, for Respondent-Appellee.

Kent E. Cattani and J.D. Nielsen, Arizona Attorney General, Capital Litigation Section, Phoenix, Arizona, for Respondent- Appellee.

ORDER

The opinion filed July 7, 2011, and appearing at 650 F.3d 1301, is withdrawn, Carver v. Lehman, 558 F.3d 869, 878–79 (9th Cir. 2009), and is replaced by the opinion filed concurrently with this order.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. Moreover, with the original opinion withdrawn, we deem the petition for rehearing and rehearing en banc moot. The parties may file a petition for rehearing and rehearing en banc with respect to the opinion filed together with…

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).

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 1039.

*1041 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.

ORDER

The opinion filed July 7, 2011, and appearing at 650 F.3d 1301 (9th Cir.2011), 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. Moreover, with the original opinion withdrawn, we deem the petition for rehearing and rehearing en banc moot. 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 but otherwise affirm the district court.

I. Background

Hurles, on parole after serving nearly fifteen years for prior crimes, went to…