F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E L

. E C H A

V A R R I A , Petitioner-Appellee/ Petitioner-Appellant

,

v.

T I M O T H Y F I L S O N , W arden; A D A M P A U L L A X A L T , Attorney General, Respondents-Appellants/ Respondents/Appellees. Nos. 15-99001 17-15560

D.C. No. 3:98-cv-00202- MMD-VPC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Miranda M. Du, District J udg e , Presiding

Arg u ed and Submitted December 6, 2017

Pasadena, California

F iled J uly 25, 2018

B efore: W illiam A. F letcher, Marsha S. B erz on, and J acqueline H. Ng

uy en, Circuit J u d g es.

Opinion by

J udg e W

. F letcherE C H A V A R R I A V

. F I L S O N 2

SUMMARY *

Crim inal Law

The panel affirmed the district court’s gr a nt of h abeas
corpus relief to J ose E c havarria, who was co n v i c t ed a nd sentenced to death for k illing F B I Special Ag ent J ohn B ailey

.

Echavarria claimed that t h e r e was a constitutionally intolerable risk o f b i a s , based on the fact that several y ears earlier Ag e n t Bailey had investig ated for possible criminal
pros ecution Nevada D istrict J udg e J ack L ehman, w ho presided over Echavarria’s trial.

The p anel r eviewed the Nevada Sup r e m e Court’s decision de novo , rather than w ith AEDPA deferenc e , because the Nevada Supreme Court adjudicated only Echavarria’s claim of actual bias, not his distinct claim of risk of bias.

The p anel h eld that Echavarria’s rig ht to due process was violated b ec ause for an averag e judg e in J udg e L ehman’s position there would have been a constitutionally intolerable risk of bias.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.E C H A V A R R I A V

. F I L S O N 3

COUNSEL

J effrey Morg a

n Conner (arg

u ed), Deputy Attorney General; Adam Paul L ax alt, Attorney G eneral; Carson City

, N e vada, for Respondents-Appellants/Appellees.

Randolph F iedler ( arg ued), Sy lvia A. I rvin, and Michael Pescetta, Assistant F ederal Public Defenders; Rene Valladares, F ederal Public D efender; Office of th e F ederal Public D e fender, L as Veg as, Nevada; for PetitionerAppellee/Appellant.

OP INION

W

. F L ETCHER, Circuit J udg e:

I n this capital case, the State o f Nevada a p p e a l s from a g rant of h abeas corpus to Petitioner J ose Echavarria. Echavarria was c onvicted and sentenced to deat h for k illing

an ag ent o f the F e deral B ureau of I nvestig ation (“F B I ”). Several y ears earlier, that same F B I ag ent had investig ated for possible criminal prosecution the judg e who presi d ed over E c h a v a rria’s trial. E c havarria was never told of the connection between the F B I ag ent and the judg e. The district
court held that this unreveal e d connection violated d ue process by creating a c onstitutionally i ntolerable r isk o f judicial bias. W e ag ree.

I . F actual B ackg round

According to the evidence p r e s ented at trial, Echavarria attempted to rob a L as Veg as ban k o n J u n e 2 5, 1990. F B I Special Ag ent J ohn B ailey was at the bank on unrelated F B IE C H A V A R R I A V

. F I L S O N 4

business. Echavarria tried to rob a teller at g unpoint. T h e teller s c r eamed, a

nd Echavarria a

b a n doned the robbery attempt. As Echavarria walked toward the b ank’s front door, Ag ent B ailey drew his gun, identified himself as an F B I
ag ent, a nd ordered E c havarria to stop. E chavarria continued walking

. Ag ent B a iley fired a shot that shattered the g lass in the door. Echavarria stopped and, at Ag ent B ai l e y ’ s orders, dropped his g un. Ag ent B ailey frisked Echavarria and asked

a bank employ ee to retrieve h a n dcuffs f rom Ag ent B ailey ’s

car.

B e fore Echavarria c ould be handc u f f ed, he knocked Ag ent B ailey to the g round. Echavarria retrieved his g un a nd shot A g ent B ailey three times. Echavarria then ran out of the bank a nd g ot into a car in which his g etaway d river, C a r l os Gurry
, was waiting

. Gurry w a s apprehended by L as Veg a s police that afternoon. Echavarria drove the g et a w a y car to J uarez , Mex ico, arrivingthere early the nex t morning

.

A. F B I Assistance to the Prosecution

The F B I imm e d i a tely launched an investig ation. F B I Ag ent Alvaro Cruz testified a t a suppression h e aring in state court that he ag reed t hat the case w as of “g reat importance”
to his office “because of the f act that it w as a special ag ent o f the F B I , who was a victim of this homicide.”

On the mor n i n g of J une 26, the F B I contacted J ose Rubalcava

, C o mmandante of the Chihuahua State J udicial Police in J uarez , Mex ico, to a sk for h is assistance in locating and arresting E chavarria. Commandante Rubalcava, who h ad

a long -stand i n g cooperative arrang e ment with the F B I
, assig ned twenty -eig ht ag ents to the task. Mex ican authorities arrested Echavarria that nig ht at about 8:30 pm at the J uarezE C H A V A R R I A V

. F I L S O N 5

airport and took him t o the J uarez police station. After learning of Echavarria’s arrest, four ag ents from the F B I ’ s El Paso o ffice, including Ag ent Cr u z , d rove across the border, arriving at the J uarez p o lice station at about 11:00 pm.

Echavarria sig ned a confession the nex t morning

. B efore trial, h e moved for suppression of his confession, alleg ing that it was obtained by

torture.

Oren Gordon, a former empl o y ee o f the Drug Enforcement Administration with ex perience working along the U.S.-Mex ico border, testified a t the hearing on Echavarria’s suppression motion:

Q: And w hat was th e ge n er a l r e p u t a tion of law enforcement ag ents in Mex ico, for the

use of phy sical abuse and tor t u r e, to obtain statements from suspects a nd witnesses?

A: I t was a common occurrence. I t was a reg ular technique used to entice the person

or induce the p e r s o n to say what they wanted him to say

. . . .

Gordon testified further that Mex ican auth orities used electrical devices to administer shocks d u ring interrog ations. He testified that devices with transformers, characteriz ed by

a humming sound w hen turned on, g ener a l l y d i d not leave marks.

Ag ent Manuel Marquez

, one of the four F B Iag ents who drove to J uarez , d enied k n o wing this g eneral reputation. W h en asked whether Mex ican law enforcement a uthoritiesE C H A V A R R I A V

. F I L S O N 6

h a v e a “reputation among law enforcement a g ents, wi t h whom y ou interface, as obtaining statements throug h torture

or phy sical abuse,” h e res p o n d e d, “W ithin the law enforcement community

, n o.” W hen asked a bo u t the

r e p u tation “within the community in J uarez and El Pas o , ” Ag ent Marquez responded, “Yes.”

Echavarria testified at the suppression hearing that he was tortured by the Mex ican poli c e

. According to Echavarria, police officers hit him while he was in the car o n t he way from the airport to the police station. W hen the y a rrived at the station, he w as taken to the “Commandante,” who advised him to cooperate, or else Maria, Echavarria’s for m e r g irlfriend w ho had helpe d him when he arrived in J uarez , “would be p ay ing th e co n sequences.” W hen Echavarria refused to cooperate, he was taken to the second floor of the police station, where his clothes were taken o ff. He was told to spread his leg s. The Mex ican police beat him in the face, using an open hand to avoid leaving marks, a nd between the leg s. After about an hour or an hour and a h a l f

, E c havarria

was c lothed and taken back down to t h e f i rst f loor. H e was put in a room with the Commandante a nd two F B I ag e nts,

one of whom spoke Spanish. The ag ents “asked me then if I

was ready to make a confession.” W hen Echavarria refused, the Commandante “told his ag ent to take [ Echavarria] upstairs to the second floor ag ain.”

Once b ack on the second f loor, Echavar

r i a w as ag ain stripped. This time, he was blindfolded. He was ag ain beaten in the face and between the l e gs. He heard someone cock a g un nex t to his e a r , a n d then felt the g un pressed ag a inst his head. Echavarria w as told he would be shot and thr o wn in the r iver. Nex t, he h eard what sound e d l i k e a welding machine being t u r ned o n, and the officers shockedE C H A V A R R I A V

. F I L S O N 7

Echavarria’s “private p arts.” They k ep t asking “[ i] f I was ready to make a confession.”

Echavarria was then taken down to the first floor, where “there w as a tall white hair man w ho was a F B I o f the United States

. . . [ who] would ask me ag ain whether I was g oing to cooperate with them.” Echavarria was a l s o taken to the basement, where his former g irlfriend Maria and he r s i s t er

were being held. Police o fficers threatened to beat Maria a nd

“ t i ghten her nipples, the breast nipples,” and do ot h e r “obscene thing s” to her.

H av i ng been broug ht “up to the second floor twice a nd

. . . once d o w n to the cell downstairs,” Echavarria sig ned a confession. He testified that he did so be ca u s e “ I had no alternative.”

The prosecution called as w itnesses at the suppression hearing two of the four F B I a g ents w ho h a d d r i ven tog ether
to J uarez

. Ag e nt Cruz testified that h e and th e o ther ag ents met w ith Comm a n d a nte Rubalcava and several other Mex ican p olice officers, a n d that Echavarria was b roug ht into the room. Ag ent Cruz testified that t h e y interviewed Echavarria for about t h irty minutes. He also testified that

none of the four F B I a g ents who went to J uarez had white hair. Ag e nt Marquez estimated that the interview took thirty
to f orty minutes. He testified that h e g ave Miranda warning s to Echavarria orally

, but that E c havarria d id not sig n the usual FBI f orm acknowledg ing the warning s because the F B I
ag ents did not have the form with them.

Ag ents Cruz and Marquez both testified that they saw no marks on Echavarria or other indications of phy sical abuse, and that they never saw Echavarria ag ain that nig ht. Age ntE C H A V A R R I A V

. F I L S O N 8

Cruz testified, “I believe that we just went back to our c ar a nd came back to El Paso.”

Echavarria’s confession, s i g ned a t about 11:00 am the

nex t morning , stated:

He then walked a

nd entered the bank and
went towards the tellers booths of the bank, he approached one of them which was being tended by a woman whom he knows wa s named CANY V EL AZ QUEZ a nd once in front of her, the declarant took the pistol a nd showed it to the teller alr e ad y mentioned
te lling her in Eng lish “I h ave a g un in the hand, g ive me the money” . . . .

[ T] he F B I ag ent approached him with his pistol on the hand ordering the declarant to leave his weapon on the floor o f the bank a nd declarant put his p istol on the floor so that afterwards, the F B I ag ent proceeded to put his pistol in the holster.

H e ordered the declarant to sit on a cha i r and declarant c omplied and when the F B I
ag ent p r o c e eded to handcuff both his hands, declarant threw himself ag a inst the F B I ag ent manag ing to throw him down on the f loor a nd declarant manag ed to set h imself l o o se a nd then g rabbed h i s Rohm .38 special c aliber pistol that was on the floor. W ith this, he shot th r ee rounds at the F B I ag ent named J OHN B A I L EY from a distance of one and a half meters while he was still ly ing o n the floor.E C H A V A R R I A V

. F I L S O N 9

Echavarria did not independently know the names of the F B I
ag ent he had shot or of the bank t e l l er h e h ad attempted to rob. This information was supplied by the F B I

.

Echavarria was formally turned o ve r to the F B I at the U.S.-Mex ico border later in the d a y o n J une 27. He was processed at the F B I ’s office in El Paso. F B I ag en t s then accompanied Echavarria o n a flig ht from El Paso to L a s Veg as. They were m e t a t the airport by the L as Veg a s Metropolitan Police, who took custody of Echavarria a nd booked him. F BI a gents remained with Echavarria throug h the booking process.

Ten day s a fter he was captured in J uarez , Echavarria was charg ed in Nevada with capital murder.

The F B I w as deeply i n v olved in developing witness testimony

. F B I ag ents interviewed about a doz en witnesses, including the b ank teller whom Echavarria had attempted to rob. An F B I

ag ent was present when the teller was shown a p hotog raphic lineup. F B I ag e nts interviewed Mari a, Echavarria’s f

ormer g irlfriend. They also interviewed Maria’s b rother, who had disposed of two g uns for Echavarria and had driven him to the J uarez airport.

The F B I also actively developed phy sical evidence. F B I
ag ents ex ecuted a search warran t o n t he car that Gurry h ad driven a s t h e g etaway vehicle from the bank and that Echavarria h ad driven from L as Veg as to J uarez

. Glass frag ments and fing erprints recovered from the car were sent to the F B I laboratory in W ashing ton, D.C., for analy sis. An F B I fing erprint specialist matched Echavarria’s p ri n t s to those found in the car. An F B I forensic g eolog ist ex a mined the g lass frag ments and matched them to g las s from theE C H A V A R R I A V

. F I L S O N 10

shattered door of the b ank. An F B I b allistics ex pert analy z ed

a recovered .38 caliber revolver and matched it to bulle t s

r e m o ved from A g ent B a iley ’s body

. An F B I lang u a ge specialist translated Echavarria’s confession from Spanish to Eng lish. F B I ag ents took t h e bank’s c amera film to have it developed at a lab. About half a doz en F B I ag ents were involved in the d evelopment of the film. F B I ag ents contacted offici a l s at the F irst I nterstate B ank of Nevada, where Gurry h ad an account. T he a g ents were led to the bank by a deposit s l i p an F B I ag ent had found in Echavarria’s wallet.

B . F B I I nvestig ation of the Nevada Trial J u dg e

Echavarria’s case was assig ned to Nevada District J udg e J ack L e hman. J udg e L ehman had been investig ated several
y ears e arlier by Ag ent B ailey for c o r r uption, fraud, a nd perjury

. F B I documents describing the investig ation were sealed b y the federal d istrict court. After soliciting the v iews of the parties and of the U nited States, w e u n s e aled the documents in this c ourt. The narrative that f ollows is based in part on the contents of the previously sealed documents.

According to the F B I documents, Ag ent B ailey r eceived i n f o r mation in 1985 “that the state o f Nevada was losing millions of dollars on low c ost h ousing land being sold

. . . b y the Col o rado River Commission (CRC).” The CRC was alleg edly selling state-owned land for a fraction of its actual value, allowing the buy ers to resell at substantial profi ts. L ehman was the C h a i r m a n of the CRC during the relevant time.

Ag ent B ailey opened a formal F B I investig ation in 1986. Ag ent B ailey learned during the course of his investig at ionE C H A V A R R I A V

. F I L S O N 11

that the CRC h ad sold a 120-acre parcel of land in L aug hlin, Nevada, (the “L aug h lin property”) to developer J ohn H

. Midby in late 198 3 o r e arly 1984. Midby had boug ht the L aug hlin property from the CRC f or $2,500 per acre. At about the same time, another developer h ad paid $45,000 per acre for land immediately adjacent to the L aug hlin property

. The CRC h ad five commissioners. L ehman and Robert B ug bee were the two CRC commissioners who had supported Midby ’ s b i d for the L a

u g h lin property from the beg inning and whose view eventually prevailed in the CRC.

F rom 1980 to 1982, before making a bid on the L aug hlin property , Midby had n ego t i ated with the American B ank o f Commerce for a le a s e o f 5,000 square feet of commercial
space that Midby owned and i n t o w h ich the bank wished to

ex p and. L ehman and B ug bee w er e members of the bank’s B oard of Directors. B u g bee volunteered t o lead the bank’s l e a s e neg otiations with Midby

. After being at a “standstill”

over Midby ’s asking price of $1.05 to $1.15 per square f oot, plus $165,000 in improvements to be paid for by the b ank, Midby ag r eed to drop the price to $0.85 per square foot, plus only $80,000 to $90,000 to be paid for the impro v e ments. Midby also provided an a dditional 1,000 square feet of space that would be r ent-free for a y ear. The other board members
at the bank were “ p l e a s antly surprised at [ B ug bee’s] ability
to neg otiate with [ Midby ] .” One o f the bank’s co-founders later “realiz ed that something may very w ell h ave been amiss . . . .”

The F B I file compiled by Ag ent B ailey co n t a i n ed evidence that L ehman may have committed perjury i n 1 9 86 while testify ing before the Nevada Gaming Control B o a r d about the Midby lease. L ehman h ad testified under o ath before the B oard that he had “‘[ a ] bsolutely nothing ’ to doE C H A V A R R I A V

. F I L S O N 12

with neg otiating the lease” between Midby and the b ank. However, the FBI f

ile contained three letters sig ned b y L ehman—one in Decembe r 1980 and two in J anuary 1981—in w hich L ehman d iscussed and neg otiated term s o f the Midby

lease.

On Aug ust 31, 1987, a fter reviewing t h e FB I ’s file, the U.S. Attorney ’s Office for the District of Nevada declined to prosecute L ehman either for federal Hobbs A ct violations o r for perjury . I t deemed the perjury charg e to be “a matter for
state prosecuti o n .” The nex t day

, J ames W eller, the F B I Special Ag ent in Charg e, wrote to W illiam Maddox

, the U.S. Attor n ey , concerning the documents showing that L ehman
may have committed perjury

. He w r o t e, “This office feels strong ly that State officials shou l d h a v e access to these documents inasmuch as the alleg ed perjury took place before the Nevada Gaming Control B oard.” H e wrote further, “This office intends to turn [the documents] over to the chairman o f
t h e Gaming Control B oard who has ex pressed an intense interest in any information indicating a witness may have lied before the Gaming Control B oard.” W eller indicated that he would not make “[ s] uch disclosure

. . . until such time as y ou

concur with this proposal and until such time as, pursuant to [ F ed. R. of Crim. P r o c

. ] 6(e), a United States District Court J udg e so orders.” I n a handwritten internal F B I memorandum
to the Special Ag ent i n C h a rg e, dated December 5, 1987, Ag ent B ailey wrote, “F oll o w ing discussion with AUSA Mey er, it is r ecommended this ma t t e r b e maintained a s

– Pending

– until such time as the USA’s o f fice receives authority f

rom D of J to present to a USDC J udg e in L a s Veg as to p r esent state officials with evidence of perjury committed in state court with respect t o L ehman a nd [ redacted] .”E C H A V A R R I A V

. F I L S O N 13

O n J u n e 23, 1988, federal District J udg e L loy d G eor ge authori z e d the r elease of the d ocuments to the Gaming Control B oard and the Nevada Attorney General’s Office. So far as the record reveals, n o state c h arg es were ever filed
ag ainst L ehman. On October 5, 1990, Ronald Asher o f t h e Gaming Control B o ard advised the F B I that “a review o f their files failed to disclose any reference to J ack L ehman.”

C. F ailure to Recuse

On September 17, 1 990, before Echavarria’s trial beg an, J udg e L ehman held a conference c a l l with the lead prosecutor, Chief Deputy Distric t Attorney W illiam H enry , and Gurry ’s c ounsel, D av id W all. W a ll stated in a sworn declaration:

During my represe ntation o f Mr. Gurry
, I learned that the F B I had conduc t e d an i n v e s t i g a t i o n o f t h e C o l o r a d o R i v e r Commission at a t i me w hen J udg e L ehman

was a member of the Commission. Prior to trial, I participated in a tele p h o ne conference call with J udg e L ehman and one of the prosecutors, either Mr. Henry or Mr. Harmon.

. . .

J udg e L e hman indicated during the conference call that a reporter h a d asked him whether he would recuse himself in the trial o f Mr. Gurry and M r

. Echavarria due to J udg e L eh m an having b een a member of the Colorado River Commission at the time it was investig ated b y the F B I

. J u d g e L ehman askedE C H A V A R R I A V

. F I L S O N 14

if ei t h e r party wanted to move to have the judg e recuse himself.

Neither I nor the prosecution asked that J udg e L ehman recuse himself.

I n an internal memorandum, W all also noted that J udge L ehman said that “his wife had b een approached on 9/17/90 and told that J udg e L ehman oug ht not to be presiding over the case since it was Ag ent B ailey who h ad investig ated actions of L ehman on the Colo r a d o River Commission prior to L ehman’s a

ppointment as a District J udg e.” According to the memorandum, “[ B ]oth Bi l l H enry and [ W all] indicated that they did n ot b e l i e ve that it was in any way h armful o r prejudicial.” I t a p pears from W a ll’s declaration a nd memorandum that J udg e L e hman did not fully ex plain to him the nature and ex tent of the F B I ’s investig ation.

On October 9
, 1 9 9 0, F B I ag ents met with Clark County District A t t o rney Rex B ell and Chief Deputy DA H enry

. Accordi ng to an F B I memorandum describing the meeting

, the ag ents provided information about the F B I ’s investig ation of J udg e L ehman. The memorandum noted that “[ t ] he
purpose of providing this informat i o n w a s to advise the D A and the prosecuting ADA of its ex istence [ so] that they could evaluate its impact f

or u se b y the defense counsel in court and/or appeal motions based on due process and equal protection cons i d erations and claiming judicial bias.” The memorandum went on:

ADA H ENRY advised that defense counsel for CAR L OS GURRY w as aware of J udg e L EHMAN’s involvement w ith SA B A I L EY

on official business but he did not believe thatE C H A V A R R I A V

. F I L S O N 15

couns e l for J OSE ECHAVARRI A had that information. A D

A HENRY said that h e would suggest a c hambers meeting to discuss this with a ll couns e l present at the next court
appearance.

(Emphasis added.)

On October 17, the F B I wrote a follow-up memorandum

s u mmariz ing the information it had compiled a bout J u d ge L ehman. I n addition to information about the CRC, the b ank, and L ehman’s testimony before the Gaming Control B oard, the memorandum described an alleg edly fraudulent land sale
to a g r oup that included L ehman: The buy ing g roup did not participate in the fraud, b ut it alleg e d ly “ d id not inform
any one of the f

r a u d ” a n d stood to “collect on title insurance

as an innocent buy er once the fr a u d w a s divulg ed.” The memorandum a l so described a c omplaint alleg ing that L ehman, acting for the CRC, ex tended a time limit for an airport project “so that another f irm with whom L ehman h ad an interest could obtain the contract.”

No “chambers meeting to discuss this wi t h all counsel present,” as contemplated in the memorandum describing the meeting between the F B I and the state prosecutors, e ver took plac e

. I t is undisputed that Echavarria and his defense attorney s did not learn about the F B I ’s investig ation o f J udg e L ehman until well after trial and sentencing

.

I I . Procedural History

Echavarria and Gurry were indicted o n f ive counts—murder with use of a deadly weapon, conspiracy to commit r o b b ery , burg lary with intent to commit r obbery

,E C H A V A R R I A V

. F I L S O N 16

attempted robbery wi t h use o f a deadly weapon, and escape

w i t h a dang e rous w eapon. T hey were tried tog e ther. Aft e r the hea ring described a b ove, J udg e L ehman denied Echavarria’s motion to suppr e ss his confession. Echavarria

was convicted on all five counts and was sentenced to death. Gurry was convicted o n all count s ex c ept escape a nd was sentenced to life with the possibility of parole.

B e fore entry of judg ment, Echavarria moved for a new trial based on, inter a lia

, juror misconduct. J udg e L ehman th r e a t ened to file a bar complaint ag ainst Echavarria’s counsel for interviewing jury members in connection with the motion. J udg e L ehman then recused himself f rom hearing the motion. After a d ifferent judg e denied the motion, J udg e L ehman entered judg

ment sentencing Echavarria to death.

Echavarria appealed his convictio n and sentence to the N e v a da Supreme Court. He asserted a c laim o f actual judicial bias based on J udg e L ehman’s hostility to his counsel during trial. Echavarria a

rg ued that he was “deprive[ d]

. . . o f

a fundamentally fair trial” b y “comme n ts of the Court [ that]
went f ar bey ond leg al admonishments on points of l a w and took the f orm o f e nrag ed rebukes to counsel.” Echavarria did
not y et know of any connection between J udg e L ehman a nd Ag ent B ailey

.

The Nevada Supreme Co u rt a ffirmed Echavarria’s conviction and sentence. T he Cou rt d i d not specifically address Echavarria’s actual judicial bias c laim. After addressinga number of other claims in detail, it wrote at the end of its opinion, “ W e have carefully ex amined appellants’

numerous other assig nments of error and determine that they lack meri t

. ” T he United States Supreme Court denied certiorari.E C H A V A R R I A V

. F I L S O N 17

Echavarria’s first state habeas petition was d enied b y J udg e L eh m an. The Nevada Supreme Court dismissed Echavarria’s appeal and denied rehearing

. Echavarria then filed a federal habeas petition pro se

. After counsel w a s appointed and filed a

n amended petition, the federal district
court allo w e d E c havarria to subpoena the F B I to obtain information a

bout Ag ent B ailey ’s investig ation. The district
court then stay ed Echavarria’s federal habeas proceeding s to allow him to present to the state court the evi d e n c e h e discovered about the investig ation.

B a sed on “the law of the case doctrine,” the state district
court d enied E chavarria’s second state habeas p e t i tion, in which he claimed “judicial bias” and “ tortured confession

. ” Echavarria then f

iled a third state habeas petition, w hich was also d enied. Echavarria appealed the denial of both p e titions
to the Nevada Supreme Court. I n h i s appeal, Echavarria d i s ting uished his claim that “J u dg e L ehman’s conduct evidences a n a c t ual bias” from a separate claim that Echavarria c alled “compensatory bias.” I n s u pport of his “compensatory bias” claim, E c havarri a cited a F ifth Circuit

case that ex plained that “[ p] resumpt i v e bias occurs when a judg e may not actually be b ias e d, but has the appearance o f bias such that the probability of actual bias . . . is too hig h to be constitutionally tolerable.” See Richardson v

. Quarterman
, 537 F .3d 4 6 6
, 475 (5th Cir. 2008) (internal quotation marks and citatio n o m itted). He also cited a Seventh Circuit case that ex plained that due pr o c e ss “may sometimes bar trial by judg es who have no actual b i as a nd who would d o their very b est to weig h the scales of justice equally between contending p arties.

. . . [T] o perform its hig h function in the best way justice must sati s f y t h e appearance of justice.” See Bracy v

. Schomig

, 2 86 F .3d 406, 410–11 (7th Cir. 2002) ( quoting Offut v. United States
, 348 U.S. 11, 14E C H A V A R R I A V

. F I L S O N 18

(1954)) ( i nternal quotation marks omitted). Echavarria
arg ued, “J udg e L ehman’s in court ruling s in Mr. Echavarria’s

case c an best be e x plained by a desire to appear as a law a nd

o r d er judg e to Ag ent B ailey ’s employ er.” Echavarria’s t w o trial counsel filed declaratio n s s t ating that they would have moved to disqualify

J udg e L ehman if they

had known about the investig ation.

The Nevada Supreme Court denied Echavarria’s a p p e al

o f the denial of his second a nd third state habeas petit i o n s

. The Court wrote, “Althoug h it appears that Echavarria did not learn of Ag ent B a iley ’s investig a tion until well after trial, the incidents he identifies as evide n c e o f judicial bias were larg e ly raised o n direct appeal and r ejected summarily by this court.” The Court c haracteriz ed the information about Ag ent B ailey ’ s inves tig ation of J udg e L ehman as “[ n] ew informa t i o n as to the source of the alleg ed bias.” T he court concluded that the new evidence was “ not so sig nificant as to persuade us to abandon the doctrine of the law of the case.” The United States Supreme Court denied certiorari.

Echavarria returned to federal district c o u r t a nd f iled a second amended habeas petition. I n a written order, the district c ou r t denied claims based o n alleg edly invalid
ag g r avating factors (Claim 2), alle ge d l y improper jury instructions (Claims 7 and 12), a n alleg e dly

improper denial of an opportunity to investig a te alleg a tions of juror mi s c o nduct (Claim 9), alleg ed prosecutorial misconduct (Claim 11), and alleg ed cumulative error (Claim 15).

The federal distr i c t court g ranted relief based on Echavarria’s claim of judicial bias (Claim 4). The court h eld that the Nevada Supreme Court had adjudicated Echavarria’s claim o f a ctual judicial bia s on the merits, and had notE C H A V A R R I A V

. F I L S O N 19

unreasonably applied United States Supreme Court case law in hold i n g t h at Echavarria had not shown actual b ias. However, the district c ourt held that the Nevad a S u p reme Court had not adjudicated on the merits Echavarria’s c l a im that there was an intolerable risk of judicial bias that “mig ht lead” the “averag e man as a judg e” to be biased. See Tumey v. Ohio , 273 U.S. 5 10, 532 (1927). T h e district court wrote:

The Ne vada Supreme Court did not consider whether there was unconstitution a l implied judicial bias. Specificall y , the Nevada Supreme Court did not c onsider whether the relationship betw een the trial judg e , the F B I and the murdered F BI a g ent, and the F B I ’s inv o lvement in the case would g ive rise to a possible temptati o n to the averag e judg e to not hold the balance nice, clear and true.

Ruling de novo on what it called E c havarria’s “ implied judicial bias” claim, the district court held that Echavarria h ad established a violation of his rig ht to due process. The court wrote:

F our y ears before Echavarria’s trial, the murder victim, F B I Ag ent B ailey

, h ad conduc t e d an investig ation of serious fraud alleg ations concern i ng the trial judg e. The
t r i a l j u d g e wa s a w a r e o f t h a t FBI investig ation, as was the prosecu tion (and

even counsel for Echavarria’s co-defendant), but Echavarria was not informed of it. The F B I play ed an important part in investig ating Ag ent B ailey ’s murder and in a p prehending Echavarria. T h ere was a n issue in the caseE C H A V A R R I A V

. F I L S O N 20

r eg arding the treatment of Echavarria i n J uarez , a fter his a

rrest was made throug h cooperation b e tween the F B I and the police in J uarez

. Several F B I ag ents testified, both at t h e e v i d e n t iary h e a r i n g r e ga r d i n g t h e admissibility of the stat e m e nt g iven b y Ec havarria after his arrest in J uarez , and at trial. Under these circums t an c es, this Court concludes that there was a sig nificant risk that

an averag e judg e would possibly be tempted
to l e an in favor of the p rosecution or to potentially

have an interest in the outcome of the case. F or e x a m p l e , an averag e judg e in this judg e’s position mig ht be tempted to d e m o n s t r a t e a l a c k o f b i a s b y overcomp e nsating and ruling in a manner to avoid any suggestion that the judg e harbored ill will ag ainst the F B I
, or ag ainst the FBI
ag ent murder victim, for having c onducted the i n v e s t i g a t i o n

. O r , t o g i v e a n o t h e r

ex a mple—keeping in mind that the inquiry is
to be made “under a realis t ic appraisal o f
p s y c h o l o g i c a l t e n d e n c i e s a n d h u m a n

we a kness,” [ Caperton v. A.T. Massey Coal Co.
, 556 U .S. 868, 883–84 (20 09)]

— an averag e judg e in this judg e’s positi on mig ht be tempted to avoid ruling s unfavorable to the F B I
, or to the prosecution of th e FBI ag e nt’s alleg ed murderer, in order to appease the F B I and avoid any further investig a tion. Either o f these inclinations would have tended to lend bias and tip the scales ag ainst Echavarria.E C H A V A R R I A V

. F I L S O N 21

I n t h is Court’s view, it is an inescapabl e conclusion that the risk o f bias o n t h e part o f the trial judg e in this case wa s t oo h ig h to

a l l o w c o n f

i d e n c e t h a t t h e c a s e w a s adjudicated fairly

, by a neutral a nd detached arbiter, c on s i s tent with the Due Process Clause of the F ederal Constitution.

(I nternal citations omitted.)

The district co u r t ex amined, but did not decide, Echavarria’s c laim that his confession had been obtained b y torture and w as therefore improperly admitted (Claim 3 ). The district court a

naly z e d Clai m 3 i n detail, sug g esting that it would have credited Ec h a v a rria’s testimony that his confession had been obtain e d b y torture, but the court “refrain[ ed] ” from deciding “ whet h e r Echavarria’s J uarez confession was voluntarily g iven.” The court wrote that it took this approach

out of sensitivity to the interests of comity a nd federalism, and a l s o considering the interest of judicial e conomy

. . . . [ T] his Court ex pects that the issue of th e admissibility o f Echavarria’s J uarez co n f ession may be revisited in state court, b e f ore Echavarria’s

r e t r i al, in lig h t of this Court’s ruling that th e tr i a l judg e, w ho previously ruled upon the admissibility of the J u arez confession, had an unconstitutional implied bias. Unde r t hese circumstanc e s, the Court will a bstain f rom ruling on Claim 3, and will, instead, deny the claim, without prejudice, as moot.E C H A V A R R I A V

. F I L S O N 22

The district c ourt g ranted h abeas based on its ruling that Echavarria had shown that there w as a c onstitutionally i n tolerable risk of judicial bias. I t ordered that Nev a d a

re l e ase or retry Echavarria, but stay ed its judg ment pending appeal. This appeal followed.

I I I . Standard of Review

W e re v iew the district court’s decision to g rant the petition f or habeas corpus de no v o

. Crittenden v. Chappell

, 804 F .3 d 9 9 8, 1006 (9th Cir. 2015). W e review the district court’s factual finding s for clear error. Id.

I V. Discussion

“A fair trial in a fair tribunal is a b asic requirement o f d ue process.” I

n re Murchison

, 349 U.S. 1 3 3
, 136 (1955).

“ Fa i r n e s s of course requires an absence of actual bias in the trial of cases. B ut our sy stem of law h as alway s endeavored
to prevent even the probability of unfairness.” Id. (emphasis added).

“[ T] he Due Process Clau s e h a s been implemented b y objective standards t h at do not require proof of actual b ias. I n d e f ining these standards the Court has asked w hether, ‘under a r ea l i s tic appraisal of psy c h olog ical tendencies a nd human weakness,’ the interest ‘ p o s es such a risk of actual bias o r prejudg ment that the p ractice must be forbidden if the
g uarantee of due process is to be adequately implemented.’” Caperton v

. A .T. Ma s s e

y Coal Co.
, 556 U.S. 868, 883–84 (2009) ( quoting W

ithrow v. L a r ki n , 421 U.S. 35, 47 (1975)) (internal citations omitte d )

. The test does not r equire a showing of actual judicia l b ias, “ thoug h actual bias, if disclosed, no doubt would be g rounds for appropriate relief.”E C H A V A R R I A V

. F I L S O N 23

Id. at 883. Rather, the test require s o n l y a showing of an

u n d u e risk of bias, based on the psy cholog ical temptatio n s affecting an “averag e judg e.” I d. at 881. F or ex ample, in concluding that there h a d b e e n an undue r isk of bias, the Supreme Court wrote:

W e conclude that J u s t ice Embry ’s participation in th is case violated appellant’s due process rig hts

. . . . We make clear that we

are not required to decide wheth e r in fact J ustice E m bry was influenced, but only whether sitting on the c ase th en before the Supreme Cou r t of Alabama “ would offer a possible temptation to the averag e

. . . judg e to

. . . lead him not to hold the balance nice, cl ea r and true.” T h e Due Process Clause “may sometimes bar trial by judg es w ho have

no actual bias a

nd who would d o t heir very best to weig h the scales of justice equally between the c ontending parties. B ut to perform its hig h function in the best w ay , ‘justice must satisfy the a ppear ance o f justice.’”

Aetna Life Ins. Co. v. Lavoie
, 4 75 U.S. 813, 825 ( 1986) (first elision added) (internal citations omitted). “The Constitution

r e q u i res recusal where ‘the probability of a ctual bias on t h e part o f the judg e or d ecisionmaker is too hig h to be

c o nstitutionally tolerable.’” Hurles v. R yan , 752 F .3d 7 6 8
, 788 (9th Cir. 2014) (quoting W ithrow

, 421 U.S. at 47).

Echavarria c laims that there was a constitutionally intolerable risk of bias, based on F B I Ag e nt B ailey ’s criminal investig ation of J udg e L ehman.E C H A V A R R I A V

. F I L S O N 24

The Antiterrorism a nd Effective Death Pen a l ty A ct ( “ A E D PA”) r equires us to g ive sig nificant deference to t h e state court’s la s t reasoned d ecision—here, the Nevada Supreme Court’s decision on appeal from the denial o f Echavarria’s second and third state h abeas petitions. S e e 28 U.S.C. § 2254(d). AEDPA defe rence applies to c laims that were “adjudicat e d o n the merits in State court proceeding s.” Id. ; see Lambert v. Blodgett

, 393 F. 3 d 943, 966 (9th C i r. 2004). An adjudication on the merits is a “decision finally resolving the parties’ claims

. . . that is based on the substance of the claim a dvanced, rather than on

a procedural, or other, g round.” Lambert

, 393 F. 3 d at 969 (quot i n g Sellan v. Kuhlman

, 261 F

. 3d 303, 311 (2d Cir. 2001)). “ A n y federally reviewable claim that was not adjudicated on the merits in state court is reviewed de novo.” Runningeagle v. Ryan
, 825 F .3d 970, 978 (9th Cir. 2016). I f

a state court denies a federal c l aim without g iving any

ex p l a n at ion, we presume that the decision was an adjudication on the merits. See Amado v. Gonzalez

, 758 F .3d 1119, 1 131 (9th Cir. 2014). B ut if a s t a t e court g ives an “ex p licit e x planation of its own decisio n , ” w e take the state court at its word. James v. Ryan
, 733 F .3d 911, 9 16 ( 9th Cir. 2013). “[ W ] h en it is clear t h a t a s t ate court has not reached the merits of a properly ra i s e d i s sue, we must review it de novo.” Pirtle v. M

organ , 313 F .3d 1160, 1167 (9th Cir. 2 002) (footnote omitted).

Here, the Nevada Supreme Court’s ex pla n a t i on of its decision on state habeas shows that i t a d j udicated only Echavarria’s claim of actual bias. I t d i d not adjudicate his distinct claim of r isk of bias. W hen the Nevada Supreme Court w as presented with Echavarria’s claim of actual bias on direct a ppeal, there was no evidence in the record of Ag ent B ailey ’ s criminal investig at ion of J udg e L ehman. L ater,E C H A V A R R I A V

. F I L S O N 25

when presented in state habeas proceeding s with evidence o f Ag ent B ailey ’s investig ation, the N e v ada Supreme Court
wrote:

Echavarria r a i s ed a claim of judicial bias on direct appeal, arg uing that the trial judg e made numerous d isparag i n g a n d e m b arrassing
comments a

bout counsel. Althoug h it appears that E chavarria d id not learn of Ag ent B a iley ’ s investig a tion u ntil well after trial, the incidents he identifies a s evidence of judicial bias were larg ely raised on direct ap peal a nd rejected summarily by this court. I n his postconviction petition, Echavarria merely refined
t h i s claim, c ontending that the g enesis of th e trial judg e’s bias was related to Ag ent B a iley ’ s investig ation of him. N e w information as to the source of t h e a lleg ed bias is not so sig nificant as to persuade us to abandon the doctrine of the law of the case.

(I nternal citations omitted.)

B y invoking the “law of the c a s e ” as the basis for its denial o f state habeas, the Nevada Supreme Court made clear
t hat it treated its prior decision as “decid[ ing ] the issue” o f bias “ex plicitly or b y necessary implication.” Dictor v

. Creative M

gmt. Servs., LLC
, 223 P.3d 332, 334 (Nev. 2010). B ut on d irect appeal, the Nevada Supr e m e Court h ad addressed only a claim of ac t ual bias based on J udg e L ehman’s hostility in court towards Echavarria’s c o u n s e l. The N evada Supreme Court could n ot have addressed Echavarria’s dist i n c t and later-raised claim o f risk of b ias, based on Ag ent B ailey ’s investig ation, because Echava r ri aE C H A V A R R I A V

. F I L S O N 26

had made no such claim on direct appeal. I ndeed, at the time of his direct appeal, Echavarria had no know l edg e of the investig ation.

The Nevada Supreme Court’s r easo n i n g in denying Echavarria’s second and third habeas petitions makes c l e a r that it decided only “whether the judg e [ was] actually

, subjectively biased.” Caperton
, 556 U.S. at 881. Reviewing the d e n i a l of state habeas, the Nevada Supreme Court described the evidence of Ag e n t B ailey ’s investig ation a s “[ n] ew information as to the source of the alleg ed bias.” The Court deemed the n e w information insufficient because it did

n ot convince the Court that J u dg e L e hman was actually biased. B ut actual bias was not the issue in Echavarria’s riskof-bias claim. A showing o f a constitutionally intole r a b le risk of bias does not require p roof of actual bias. Id. at 883;

see also W

illiams v. Pennsylvania

, 136 S. Ct. 1899, 1905 ( 2 016) ( “ [ T] h e Court’s precedents a pply a n objective standard that, in the u sual case, avoids having to determine whether actual bias is present.”). I ndeed

, d u e process “may sometimes require recusal of judg e s who have no actual bias

an d who would do their very best to weig h the scales o f justice equally .” Hurles

, 752 F .3d a t 789 (internal quotation marks and citation omitted).

The Nevada Supreme Court has made a similar error before. I n Rippo v. Baker

, 137 S. Ct. 905 (2017) ( per curiam), the Supreme Court “vacate[ d] the N evada Supreme C o u rt ’s judg ment because it applied the wrong leg a l standard” for a p o s t -conviction claim of judicial b ias. Id. at 907. The petitioner alleg ed that his trial jud g e w as biased because the judg e was the subject of an investig ation involving the local district attorney ’ s o ffice and L as Veg a s p o l i c e department. R ippo v. State
, 368 P.3d 729, 743 (N ev

.E C H A V A R R I A V

. F I L S O N 27

2016) (per curiam), vacated

, Rippo v. B a k er , 137 S. Ct. 905 (2017) (per curiam). The N evada S u p reme Court h ad concluded, “Taki n g Rippo’s alleg ations as true, there remains [n] o factual basis

. . . for Rippo’s arg ument that [ the trial judg e] was under p ressure to accommodate the State o r treat criminal defendan t s i n state proceeding s less favorably

or that h e was b iased ag ainst Rippo because of the investig ation and indictment.” I d

. a t 744 (internal quotation marks omitted) (alterations in orig inal). The United States Supreme Court ex plained that “[ t] h e Nevada Supreme Court did not a sk the question our p r e c e d e nts require: w hether, considering all the circumstances alleg ed, the risk of bias was too hig h to be constitutionally tolerable.” Rippo
, 137 S. Ct. at 907.

Here, rather than apply ing the wrong leg al standard to a risk-of-bias c laim, the Nevada Supreme Court never decided the claim. The district court was therefore correct to review the claim de novo

. W e, too, review it d e n o v o

. W e must determine “whether the averag e judg e in [ J u d ge L ehman’s] position is ‘likely ’ to be neutral, o r whether there is an unconstitutional ‘potential for b ias.’” Caperton
, 556 U.S. at 881. T h e r u l e is “string ent.” Hurles

, 752 F .3d a t 789 (quoting M

urchison

, 359 U.S. at 13 6 )

. I t reaches “[ e] very p r o cedure which would offer a p ossible temptation to the
averag e

. . . judg e to forg et the burden of proof .

. . or which mig ht lead him not to hold the balance nice, clear and true between th e S t a t e and the accused.” Id. (quoting Tumey
, 273 U.S. at 532). I t also requires “a realis t i c ap p raisal o f
psy cholog ical tendencies and h u man weakness.” Id. (quoting Caperton , 556 U.S. at 883–84).

J udg e L ehman was well a w are of the F B I ’s efforts to

e n s ure Echavarria’s conviction. T h e averag e judg e in h i sE C H A V A R R I A V

. F I L S O N 28

p o s i t ion would h ave understood the risk entailed in makin g ruling s f avo ra b l e to Echavarria. As detailed above, the F B I marshaled ag ents and resources from multiple offices a nd

en l i s t ed the assistance of the Mex ican police. The F B I sent four ag ents to Echavarria’s interrog a tion in Mex ico. The F B I provided information used in the confession that Echavarria sig ned the nex t morning

. F B I personnel later t r a nslated the confession into Eng lish for the prosecutio n

. The F B I ’s involvement in the o peration was so deep that Commandante Rubalcava, the deputy chief of the Mex ican police in J uarez , later believed that he needed to “have a clearance” from the F B I in o rder to speak with Echavarria’s counsel. After Echav arria confessed, F B I ag ents g athered and analy z ed critical evidence to be used at trial—witnesse s, fing erprints, ballistics, and even g lass f r a gments e valuated by an F B I forensic g e olog ist.

F B I a g ents testified at the suppress ion hearing in state court. At the conclusion of that hearing

, J udg e L e hman was required to c hoose between the F B I ag en t s ’ a c count of the interrog ation and E chavarria’s. I n a l l

, t w enty employ ees o f the F B I testified during proceeding s befo r e J udg e L ehman,
many of them stressing the fact that Ag ent B ailey was an F B I
ag ent.

Duri ng voir d ire, the prosecution emphasiz ed that “[ t] he murder victim was a special ag ent with the F ederal B ureau o f I n v e s t ig ation.” At trial, the prosecution beg an its opening
statement the same way : “On[ ] the 25th of J une, 1990, at about eleven forty -nine a.m. , Special Ag ent J ohn B ailey o f the F e d e r a l B u reau o f I nvestig ation was inside the Security Pacific N ational B ank

. . . . H e w as there on official business.” I n its c losing a

rg ument, the p rosecution reiterated, “I t would be easy enoug h to, after all this time,

. . . to f org etE C H A V A R R I A V

. F I L S O N 29

perhaps the very real r eason we a re all here and we’re all doing this. The very

real reason we’re all here and we’re all doing this is shown in State’s ex hibit numb e r o n e , the photog raph of Special Ag ent J ohn B ailey of the F ederal B ureau of I

nvestig ation.”

B a sed o n our de n ovo review, we h old that Echavarria’s rig ht to due process was v iolated. I ndeed, on the facts before
us, we would so hold even if w e were addressing the question under the deferential standard of AEDPA. F or an a verag e judg e in J u dg e L ehman’s p osition there would h ave been a constitutionally intolerable risk of bias. An averag e judg e in that position would have feared that ruling s favoring Echavarria, t ipping the outcome towards acquittal or a sentenc e less than death, could cost h im his reputation, his judg eship, and possibly

his liberty

.

The State arg ues that there was no ri s k of b ias because federal a nd state authorities had previ o u s ly declined to prosecute J udg e L ehman. B ut the quest i on before us is not whether, a few y ears before Echavarria’s trial, J udg e L ehman had escaped prosecution. The question is whether a n a verag e judg e in J udg e L ehman’s position w ould have feared that the F B I mig ht reopen its investig a tion or renew its advocacy for
state prosecution if he made r uling s favorable to Echavarria.

The State also a

r g ues that J udg e L ehman’s risk of b i a s

was no different f

rom that of “

j u d ge s a t all levels of the judicial sy stem [ who] are con s tantly asked to make ruling s that could cut ag ainst the interests o f s t a t e and federal law enforcement ag encies.” That is plainly incorrect. J udg e L ehman was no ordinary judg e, and Echav arria was no ordinary defendant. Rath e r, J udg e L ehman personally h ad been cr i m i n ally investig ated by the very F B I ag ent thatE C H A V A R R I A V

. F I L S O N 30

Echavarria w as accused of killing

, and th e case r equired J udg e L ehman to deter m i n e, inter a lia

, whether F B I ag ents had known about or bee n i n v o lved in the use of torture in obtaining Echavarria’s confession.

I n the circumstances o f this cas e , t h e risk of bias was

ex traordinary in both its nature and severity

. T he risk was obvious to all who h ad complete informatio n a b o ut Ag ent B ailey ’ s investig ation. The F B I met with the prosecutors specifically to brief them on A g ent B ailey ’s investig ation a nd
prepare them for “in court and / o r a ppeal motions b ased on due process and equal protection considerations and claiming j u d i c i al bias .” (Emphasis added.) B ased on what was revealed in that meeting

, the prosecutors appear to have
recog niz ed the importance o f informing Echavarria of the investig ation. I ndeed, Chief Deputy District Attorney Henry promised to “ sug g est a chambers meeting to discuss this with all counsel p resent.” B ut that meeting never took place, and Echavarria never had the opportunity to r e q uest that J udg e L ehman recuse.

Conclusion

The risk of b ias in this c ase deprived Echavarria of t h e fair tribunal to w h i c h h e was constitutionally entitled. W e there f ore a ffirm the district court’s g rant of habeas relief. B ecause we affirm the d istrict court on this g round, we d o not reach the other questions presented in this appeal.

AF F IRMED.