FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE L. ECHAVARRIA,

Petitioner-Appellee/

Petitioner-Appellant,

v.

TIMOTHY FILSON, Warden; ADAM

PAUL LAXALT, Attorney General,

Respondents-Appellants/

Respondents/Appellees.

Nos. 15-99001

17-15560

D.C. No.

3:98-cv-00202-

MMD-VPC

OPINION

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Argued and Submitted December 6, 2017

Pasadena, California

Filed July 25, 2018

Before: William A. Fletcher, Marsha S. Berzon,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge W. Fletcher
2 ECHAVARRIA V. FILSON

SUMMARY*

Criminal Law

The panel affirmed the district court’s grant of habeas

corpus relief to Jose Echavarria, who was convicted and

sentenced to death for killing FBI Special Agent John Bailey.

Echavarria claimed that there was a constitutionally

intolerable risk of bias, based on the fact that several years

earlier Agent Bailey had investigated for possible criminal

prosecution Nevada District Judge Jack Lehman, who

presided over Echavarria’s trial.

The panel reviewed the Nevada SupremeCourt’s decision

de novo, rather than with AEDPA deference, because the

Nevada Supreme Court adjudicated only Echavarria’s claim

of actual bias, not his distinct claim of risk of bias.

The panel held that Echavarria’s right to due process was

violated because for an average judge in Judge Lehman’s

position there would have been a constitutionally intolerable

risk of bias.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ECHAVARRIA V. FILSON 3

COUNSEL

Jeffrey Morgan Conner (argued), Deputy Attorney General;

Adam Paul Laxalt, Attorney General; Carson City, Nevada,

for Respondents-Appellants/Appellees.

Randolph Fiedler (argued), Sylvia A. Irvin, and Michael

Pescetta, Assistant Federal Public Defenders; Rene

Valladares, Federal Public Defender; Office of the Federal

Public Defender, Las Vegas, Nevada; for PetitionerAppellee/Appellant.

OPINION

W. FLETCHER, Circuit Judge:

In this capital case, the State of Nevada appeals from a

grant of habeas corpus to Petitioner Jose Echavarria. 

Echavarria was convicted and sentenced to death for killing

an agent of the Federal Bureau of Investigation (“FBI”). 

Several years earlier, that same FBI agent had investigated for

possible criminal prosecution the judge who presided over

Echavarria’s trial. Echavarria was never told of the

connection between the FBI agent and the judge. The district

court held that this unrevealed connection violated due

process by creating a constitutionally intolerable risk of

judicial bias. We agree.

I. Factual Background

According to the evidence presented at trial, Echavarria

attempted to rob a Las Vegas bank on June 25, 1990. FBI

Special Agent John Bailey was at the bank on unrelated FBI
4 ECHAVARRIA V. FILSON

business. Echavarria tried to rob a teller at gunpoint. The

teller screamed, and Echavarria abandoned the robbery

attempt. As Echavarria walked toward the bank’s front door,

Agent Bailey drew his gun, identified himself as an FBI

agent, and ordered Echavarria to stop. Echavarria continued

walking. Agent Bailey fired a shot that shattered the glass in

the door. Echavarria stopped and, at Agent Bailey’s orders,

dropped his gun. Agent Bailey frisked Echavarria and asked

a bank employee to retrieve handcuffs from Agent Bailey’s

car.

Before Echavarria could be handcuffed, he knocked

Agent Bailey to the ground. Echavarria retrieved his gun and

shot Agent Bailey three times. Echavarria then ran out of the

bank and got into a car in which his getaway driver, Carlos

Gurry, was waiting. Gurry was apprehended by Las Vegas

police that afternoon. Echavarria drove the getaway car to

Juarez, Mexico, arriving there early the next morning. 

A. FBI Assistance to the Prosecution

The FBI immediately launched an investigation. FBI

Agent Alvaro Cruz testified at a suppression hearing in state

court that he agreed that the case was of “great importance”

to his office “because of the fact that it was a special agent of

the FBI, who was a victim of this homicide.”

On the morning of June 26, the FBI contacted Jose

Rubalcava, Commandante of the Chihuahua State Judicial

Police in Juarez, Mexico, to ask for his assistance in locating

and arrestingEchavarria. Commandante Rubalcava, who had

a long-standing cooperative arrangement with the FBI,

assigned twenty-eight agents to the task. Mexican authorities

arrested Echavarria that night at about 8:30 pm at the Juarez
ECHAVARRIA V. FILSON 5

airport and took him to the Juarez police station. After

learning of Echavarria’s arrest, four agents from the FBI’s El

Paso office, including Agent Cruz, drove across the border,

arriving at the Juarez police station at about 11:00 pm.

Echavarria signed a confession the next morning. Before

trial, he moved for suppression of his confession, alleging

that it was obtained by torture.

Oren Gordon, a former employee of the Drug

Enforcement Administration with experience working along

the U.S.-Mexico border, testified at the hearing on

Echavarria’s suppression motion:

Q: And what was the general reputation of

law enforcement agents in Mexico, for the

use of physical abuse and torture, to

obtain statements from suspects and

witnesses?

A: It was a common occurrence. It was a

regular technique used to entice the person

or induce the person to say what they

wanted him to say . . . .

Gordon testified further that Mexican authorities used

electrical devices to administer shocks during interrogations. 

He testified that devices with transformers, characterized by

a humming sound when turned on, generally did not leave

marks.

Agent Manuel Marquez, one of the four FBI agents who

drove to Juarez, denied knowing this general reputation. 

When asked whether Mexican law enforcement authorities
6 ECHAVARRIA V. FILSON

have a “reputation among law enforcement agents, with

whom you interface, as obtaining statements through torture

or physical abuse,” he responded, “Within the law

enforcement community, no.” When asked about the

reputation “within the community in Juarez and El Paso,”

Agent Marquez responded, “Yes.”

Echavarria testified at the suppression hearing that he was

tortured by the Mexican police. According to Echavarria,

police officers hit him while he was in the car on the way

from the airport to the police station. When they arrived at

the station, he was taken to the “Commandante,” who advised

him to cooperate, or else Maria, Echavarria’s former

girlfriend who had helped him when he arrived in Juarez,

“would be paying the consequences.” When Echavarria

refused to cooperate, he was taken to the second floor of the

police station, where his clothes were taken off. He was told

to spread his legs. The Mexican police beat him in the face,

using an open hand to avoid leaving marks, and between the

legs. After about an hour or an hour and a half, Echavarria

was clothed and taken back down to the first floor. He was

put in a room with the Commandante and two FBI agents,

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

was ready to make a confession.” When Echavarria refused,

the Commandante “told his agent to take [Echavarria]

upstairs to the second floor again.”

Once back on the second floor, Echavarria was again

stripped. This time, he was blindfolded. He was again beaten

in the face and between the legs. He heard someone cock a

gun next to his ear, and then felt the gun pressed against his

head. Echavarria was told he would be shot and thrown in

the river. Next, he heard what sounded like a welding

machine being turned on, and the officers shocked
ECHAVARRIA V. FILSON 7

Echavarria’s “private parts.” They kept asking “[i]f I was

ready to make a confession.”

Echavarria was then taken down to the first floor, where

“there was a tall white hair man who was a FBI of the United

States . . . [who] would ask me again whether I was going to

cooperate with them.” Echavarria was also taken to the

basement, where his former girlfriend Maria and her sister

were being held. Police officers threatened to beat Maria and

“tighten her nipples, the breast nipples,” and do other

“obscene things” to her.

Having been brought “up to the second floor twice and

. . . once down to the cell downstairs,” Echavarria signed a

confession. He testified that he did so because “I had no

alternative.”

The prosecution called as witnesses at the suppression

hearing two of the four FBI agents who had driven together

to Juarez. Agent Cruz testified that he and the other agents

met with Commandante Rubalcava and several other

Mexican police officers, and that Echavarria was brought into

the room. Agent Cruz testified that they interviewed

Echavarria for about thirty minutes. He also testified that

none of the four FBI agents who went to Juarez had white

hair. Agent Marquez estimated that the interview took thirty

to forty minutes. He testified that he gave Miranda warnings

to Echavarria orally, but that Echavarria did not sign the usual

FBI form acknowledging the warnings because the FBI

agents did not have the form with them.

Agents Cruz and Marquez both testified that they saw no

marks on Echavarria or other indications of physical abuse,

and that they never saw Echavarria again that night. Agent
8 ECHAVARRIA V. FILSON

Cruz testified, “I believe that we just went back to our car and

came back to El Paso.”

Echavarria’s confession, signed at about 11:00 am the

next morning, stated:

He then walked and 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 was

named CANY VELAZQUEZ and once in

front of her, the declarant took the pistol and

showed it to the teller already mentioned

telling her in English “I have a gun in the

hand, give me the money” . . . .

[T]he FBI agent approached him with his

pistol on the hand ordering the declarant to

leave his weapon on the floor of the bank and

declarant put his pistol on the floor so that

afterwards, the FBI agent proceeded to put his

pistol in the holster.

He ordered the declarant to sit on a chair

and declarant complied and when the FBI

agent proceeded to handcuff both his hands,

declarant threw himself against the FBI agent

managing to throw him down on the floor and

declarant managed to set himself loose and

then grabbed his Rohm .38 special caliber

pistol that was on the floor. With this, he shot

three rounds at the FBI agent named JOHN

BAILEY from a distance of one and a half

meters while he was still lying on the floor.
ECHAVARRIA V. FILSON 9

Echavarria did not independently know the names of the FBI

agent he had shot or of the bank teller he had attempted to

rob. This information was supplied by the FBI.

Echavarria was formally turned over to the FBI at the

U.S.-Mexico border later in the day on June 27. He was

processed at the FBI’s office in El Paso. FBI agents then

accompanied Echavarria on a flight from El Paso to Las

Vegas. They were met at the airport by the Las Vegas

Metropolitan Police, who took custody of Echavarria and

booked him. FBI agents remained with Echavarria through

the booking process.

Ten days after he was captured in Juarez, Echavarria was

charged in Nevada with capital murder.

The FBI was deeply involved in developing witness

testimony. FBI agents interviewed about a dozen witnesses,

including the bank teller whom Echavarria had attempted to

rob. An FBI agent was present when the teller was shown a

photographic lineup. FBI agents interviewed Maria,

Echavarria’s former girlfriend. They also interviewed

Maria’s brother, who had disposed of two guns for Echavarria

and had driven him to the Juarez airport.

The FBI also actively developed physical evidence. FBI

agents executed a search warrant on the car that Gurry had

driven as the getaway vehicle from the bank and that

Echavarria had driven from Las Vegas to Juarez. Glass

fragments and fingerprints recovered from the car were sent

to the FBI laboratory in Washington, D.C., for analysis. An

FBI fingerprint specialist matched Echavarria’s prints to

those found in the car. An FBI forensic geologist examined

the glass fragments and matched them to glass from the
10 ECHAVARRIA V. FILSON

shattered door of the bank. An FBI ballistics expert analyzed

a recovered .38 caliber revolver and matched it to bullets

removed from Agent Bailey’s body. An FBI language

specialist translated Echavarria’s confession from Spanish to

English. FBI agents took the bank’s camera film to have it

developed at a lab. About half a dozen FBI agents were

involved in the development of the film. FBI agents

contacted officials at the First Interstate Bank of Nevada,

where Gurry had an account. The agents were led to the bank

by a deposit slip an FBI agent had found in Echavarria’s

wallet.

B. FBI Investigation of the Nevada Trial Judge

Echavarria’s case was assigned to Nevada District Judge

Jack Lehman. Judge Lehman had been investigated several

years earlier by Agent Bailey for corruption, fraud, and

perjury. FBI documents describing the investigation were

sealed by the federal district court. After soliciting the views

of the parties and of the United States, we unsealed the

documents in this court. The narrative that follows is based

in part on the contents of the previously sealed documents.

According to the FBI documents, Agent Bailey received

information in 1985 “that the state of Nevada was losing

millions of dollars on low cost housing land being sold . . . by

the Colorado River Commission (CRC).” The CRC was

allegedly selling state-owned land for a fraction of its actual

value, allowing the buyers to resell at substantial profits. 

Lehman was the Chairman of the CRC during the relevant

time.

Agent Bailey opened a formal FBI investigation in 1986. 

Agent Bailey learned during the course of his investigation
ECHAVARRIA V. FILSON 11

that the CRC had sold a 120-acre parcel of land in Laughlin,

Nevada, (the “Laughlin property”) to developer John H.

Midby in late 1983 or early 1984. Midby had bought the

Laughlin property from the CRC for $2,500 per acre. At

about the same time, another developer had paid $45,000 per

acre for land immediately adjacent to the Laughlin property. 

The CRC had five commissioners. Lehman and Robert

Bugbee were the two CRC commissioners who had supported

Midby’s bid for the Laughlin property from the beginning

and whose view eventually prevailed in the CRC.

From 1980 to 1982, before making a bid on the Laughlin

property, Midby had negotiated with the American Bank of

Commerce for a lease of 5,000 square feet of commercial

space that Midby owned and into which the bank wished to

expand. Lehman and Bugbee were members of the bank’s

Board of Directors. Bugbee volunteered to lead the bank’s

lease negotiations with Midby. After being at a “standstill”

over Midby’s asking price of $1.05 to $1.15 per square foot,

plus $165,000 in improvements to be paid for by the bank,

Midby agreed to drop the price to $0.85 per square foot, plus

only $80,000 to $90,000 to be paid for the improvements. 

Midby also provided an additional 1,000 square feet of space

that would be rent-free for a year. The other board members

at the bank were “pleasantly surprised at [Bugbee’s] ability

to negotiate with [Midby].” One of the bank’s co-founders

later “realized that something may very well have been amiss

. . . .”

The FBI file compiled by Agent Bailey contained

evidence that Lehman may have committed perjury in 1986

while testifying before the Nevada Gaming Control Board

about the Midby lease. Lehman had testified under oath

before the Board that he had “‘[a]bsolutely nothing’ to do
12 ECHAVARRIA V. FILSON

with negotiating the lease” between Midby and the bank. 

However, the FBI file contained three letters signed by

Lehman—one in December 1980 and two in January

1981—in which Lehman discussed and negotiated terms of

the Midby lease.

On August 31, 1987, after reviewing the FBI’s file, the

U.S. Attorney’s Office for the District of Nevada declined to

prosecute Lehman either for federal Hobbs Act violations or

for perjury. It deemed the perjury charge to be “a matter for

state prosecution.” The next day, James Weller, the FBI

Special Agent in Charge, wrote to William Maddox, the U.S.

Attorney, concerning the documents showing that Lehman

may have committed perjury. He wrote, “This office feels

strongly that State officials should have access to these

documents inasmuch as the alleged perjury took place before

the Nevada Gaming Control Board.” He wrote further, “This

office intends to turn [the documents] over to the chairman of

the Gaming Control Board who has expressed an intense

interest in any information indicating a witness may have lied

before the Gaming Control Board.” Weller indicated that he

would not make “[s]uch disclosure . . . until such time as you

concur with this proposal and until such time as, pursuant to

[Fed. R. of Crim. Proc.] 6(e), a United States District Court

Judge so orders.” In a handwritten internal FBImemorandum

to the Special Agent in Charge, dated December 5, 1987,

Agent Bailey wrote, “Following discussion with AUSA

Meyer, it is recommended this matter be maintained as –

Pending – until such time as the USA’s office receives

authority from D of J to present to a USDC Judge in Las

Vegas to present state officials with evidence of perjury

committed in state court with respect to Lehman and

[redacted].”
ECHAVARRIA V. FILSON 13

On June 23, 1988, federal District Judge Lloyd George

authorized the release of the documents to the Gaming

Control Board and the Nevada AttorneyGeneral’s Office. So

far as the record reveals, no state charges were ever filed

against Lehman. On October 5, 1990, Ronald Asher of the

Gaming Control Board advised the FBIthat “a review of their

files failed to disclose any reference to Jack Lehman.” 

C. Failure to Recuse

On September 17, 1990, before Echavarria’s trial began,

Judge Lehman held a conference call with the lead

prosecutor, Chief Deputy District Attorney William Henry,

and Gurry’s counsel, David Wall. Wall stated in a sworn

declaration:

During my representation of Mr. Gurry, I

learned that the FBI had conducted an

investigation of the Colorado River

Commission at a time when Judge Lehman

was a member of the Commission. Prior to

trial, I participated in a telephone conference

call with Judge Lehman and one of the

prosecutors, either Mr. Henry or Mr. Harmon.

. . .

Judge Lehman indicated during the

conference call that a reporter had asked him

whether he would recuse himself in the trial of

Mr. Gurry and Mr. Echavarria due to Judge

Lehman having been a member of the

Colorado River Commission at the time it was

investigated by the FBI. Judge Lehman asked
14 ECHAVARRIA V. FILSON

if either party wanted to move to have the

judge recuse himself.

Neither I nor the prosecution asked that

Judge Lehman recuse himself.

In an internal memorandum, Wall also noted that Judge

Lehman said that “his wife had been approached on 9/17/90

and told that Judge Lehman ought not to be presiding over the

case since it was Agent Bailey who had investigated actions

of Lehman on the Colorado River Commission prior to

Lehman’s appointment as a District Judge.” According to the

memorandum, “[B]oth Bill Henry and [Wall] indicated that

they did not believe that it was in any way harmful or

prejudicial.” It appears from Wall’s declaration and

memorandum that Judge Lehman did not fully explain to him

the nature and extent of the FBI’s investigation.

On October 9, 1990, FBI agents met with Clark County

District Attorney Rex Bell and Chief Deputy DA Henry. 

According to an FBI memorandum describing the meeting,

the agents provided information about the FBI’s investigation

of Judge Lehman. The memorandum noted that “[t]he

purpose of providing this information was to advise the DA

and the prosecuting ADA of its existence [so] that they could

evaluate its impact for use by the defense counsel in court

and/or appeal motions based on due process and equal

protection considerations and claiming judicial bias.” The

memorandum went on:

ADA HENRY advised that defense counsel

for CARLOS GURRY was aware of Judge

LEHMAN’s involvement with SA BAILEY

on official business but he did not believe that
ECHAVARRIA V. FILSON 15

counsel for JOSE ECHAVARRIA had that

information. ADA HENRY said that he would

suggest a chambers meeting to discuss this

with all counsel present at the next court

appearance.

(Emphasis added.)

On October 17, the FBI wrote a follow-up memorandum

summarizing the information it had compiled about Judge

Lehman. In addition to information about the CRC, the bank,

and Lehman’s testimony before the Gaming Control Board,

the memorandum described an allegedly fraudulent land sale

to a group that included Lehman: The buying group did not

participate in the fraud, but it allegedly “did not inform

anyone of the fraud” and stood to “collect on title insurance

as an innocent buyer once the fraud was divulged.” The

memorandum also described a complaint alleging that

Lehman, acting for the CRC, extended a time limit for an

airport project “so that another firm with whom Lehman had

an interest could obtain the contract.”

No “chambers meeting to discuss this with all counsel

present,” as contemplated in the memorandum describing the

meeting between the FBI and the state prosecutors, ever took

place. It is undisputed that Echavarria and his defense

attorneys did not learn about the FBI’s investigation of Judge

Lehman until well after trial and sentencing.

II. Procedural History

Echavarria and Gurry were indicted on five

counts—murder with use of a deadly weapon, conspiracy to

commit robbery, burglary with intent to commit robbery,
16 ECHAVARRIA V. FILSON

attempted robbery with use of a deadly weapon, and escape

with a dangerous weapon. They were tried together. After

the hearing described above, Judge Lehman denied

Echavarria’s motion to suppress his confession. Echavarria

was convicted on all five counts and was sentenced to death. 

Gurry was convicted on all counts except escape and was

sentenced to life with the possibility of parole.

Before entry of judgment, Echavarria moved for a new

trial based on, inter alia, juror misconduct. Judge Lehman

threatened to file a bar complaint against Echavarria’s

counsel for interviewing jurymembers in connection with the

motion. Judge Lehman then recused himself from hearing the

motion. After a different judge denied the motion, Judge

Lehman entered judgment sentencing Echavarria to death.

Echavarria appealed his conviction and sentence to the

Nevada Supreme Court. He asserted a claim of actual

judicial bias based on Judge Lehman’s hostility to his counsel

during trial. Echavarria argued that he was “deprive[d] . . . of

a fundamentally fair trial” by “comments of the Court [that]

went far beyond legal admonishments on points of law and

took the form of enraged rebukes to counsel.” Echavarria did

not yet know of any connection between Judge Lehman and

Agent Bailey.

The Nevada Supreme Court affirmed Echavarria’s

conviction and sentence. The Court did not specifically

address Echavarria’s actual judicial bias claim. After

addressing a number of other claims in detail, it wrote at the

end of its opinion, “We have carefully examined appellants’

numerous other assignments of error and determine that they

lack merit.” The United States Supreme Court denied

certiorari.
ECHAVARRIA V. FILSON 17

Echavarria’s first state habeas petition was denied by

Judge Lehman. The Nevada Supreme Court dismissed

Echavarria’s appeal and denied rehearing. Echavarria then

filed a federal habeas petition pro se. After counsel was

appointed and filed an amended petition, the federal district

court allowed Echavarria to subpoena the FBI to obtain

information about Agent Bailey’s investigation. The district

court then stayed Echavarria’s federal habeas proceedings to

allow him to present to the state court the evidence he

discovered about the investigation.

Based on “the law of the case doctrine,” the state district

court denied Echavarria’s second state habeas petition, in

which he claimed “judicial bias” and “tortured confession.” 

Echavarria then filed a third state habeas petition, which was

also denied. Echavarria appealed the denial of both petitions

to the Nevada Supreme Court. In his appeal, Echavarria

distinguished his claim that “Judge Lehman’s conduct

evidences an actual bias” from a separate claim that

Echavarria called “compensatory bias.” In support of his

“compensatory bias” claim, Echavarria cited a Fifth Circuit

case that explained that “[p]resumptive bias occurs when a

judge may not actually be biased, but has the appearance of

bias such that the probability of actual bias . . . is too high to

be constitutionally tolerable.” See Richardson v.

Quarterman, 537 F.3d 466, 475 (5th Cir. 2008) (internal

quotation marks and citation omitted). He also cited a

Seventh Circuit case that explained that due process “may

sometimes bar trial by judges who have no actual bias and

who would do their very best to weigh the scales of justice

equally between contending parties. . . . [T]o perform its high

function in the best way justice must satisfy the appearance

of justice.” See Bracy v. Schomig, 286 F.3d 406, 410–11 (7th

Cir. 2002) (quoting Offut v. United States, 348 U.S. 11, 14
18 ECHAVARRIA V. FILSON

(1954)) (internal quotation marks omitted). Echavarria

argued, “Judge Lehman’s in court rulings in Mr. Echavarria’s

case can best be explained by a desire to appear as a law and

order judge to Agent Bailey’s employer.” Echavarria’s two

trial counsel filed declarations stating that they would have

moved to disqualify Judge Lehman if they had known about

the investigation.

The Nevada Supreme Court denied Echavarria’s appeal

of the denial of his second and third state habeas petitions. 

The Court wrote, “Although it appears that Echavarria did not

learn of Agent Bailey’s investigation until well after trial, the

incidents he identifies as evidence of judicial bias were

largely raised on direct appeal and rejected summarily by this

court.” The Court characterized the information about Agent

Bailey’s investigation of Judge Lehman as “[n]ew

information as to the source of the alleged bias.” The court

concluded that the new evidence was “not so significant 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 court and filed a

second amended habeas petition. In a written order, the

district court denied claims based on allegedly invalid

aggravating factors (Claim 2), allegedly improper jury

instructions (Claims 7 and 12), an allegedly improper denial

of an opportunity to investigate allegations of juror

misconduct (Claim 9), alleged prosecutorial misconduct

(Claim 11), and alleged cumulative error (Claim 15).

The federal district court granted relief based on

Echavarria’s claim of judicial bias (Claim 4). The court held

that the Nevada Supreme Court had adjudicated Echavarria’s

claim of actual judicial bias on the merits, and had not
ECHAVARRIA V. FILSON 19

unreasonably applied United States Supreme Court case law

in holding that Echavarria had not shown actual bias. 

However, the district court held that the Nevada Supreme

Court had not adjudicated on the merits Echavarria’s claim

that there was an intolerable risk of judicial bias that “might

lead” the “average man as a judge” to be biased. See Tumey

v. Ohio, 273 U.S. 510, 532 (1927). The district court wrote:

The Nevada Supreme Court did not consider

whether there was unconstitutional implied

judicial bias. Specifically, the Nevada

Supreme Court did not consider whether the

relationship between the trial judge, the FBI

and the murdered FBI agent, and the FBI’s

involvement in the case would give rise to a

possible temptation to the average judge to

not hold the balance nice, clear and true.

Ruling de novo on what it called Echavarria’s “implied

judicial bias” claim, the district court held that Echavarria had

established a violation of his right to due process. The court

wrote:

Four years before Echavarria’s trial, the

murder victim, FBI Agent Bailey, had

conducted an investigation of serious fraud

allegations concerning the trial judge. The

trial judge was aware of that FBI

investigation, as was the prosecution (and

even counsel for Echavarria’s co-defendant),

but Echavarria was not informed of it. The

FBI played an important part in investigating

Agent Bailey’s murder and in apprehending

Echavarria. There was an issue in the case
20 ECHAVARRIA V. FILSON

regarding the treatment of Echavarria in

Juarez, after his arrest was made through

cooperation between the FBI and the police in

Juarez. Several FBI agents testified, both at

the evidentiary hearing regarding the

admissibility of the statement given by

Echavarria after his arrest in Juarez, and at

trial. Under these circumstances, this Court

concludes that there was a significant risk that

an average judge would possibly be tempted

to lean in favor of the prosecution or to

potentially have an interest in the outcome of

the case. For example, an average judge in

this judge’s position might be tempted to

demonstrate a lack of bias by

overcompensating and ruling in a manner to

avoid any suggestion that the judge harbored

ill will against the FBI, or against the FBI

agent murder victim, for having conducted the

investigation. Or, to give another

example—keeping in mind that the inquiry is

to be made “under a realistic appraisal of

psychological tendencies and human

weakness,” [Caperton v. A.T. Massey Coal

Co., 556 U.S. 868, 883–84 (2009)]—an

average judge in this judge’s position might

be tempted to avoid rulings unfavorable to the

FBI, or to the prosecution of the FBI agent’s

alleged murderer, in order to appease the FBI

and avoid any further investigation. Either of

these inclinations would have tended to lend

bias and tip the scales against Echavarria.
ECHAVARRIA V. FILSON 21

In this Court’s view, it is an inescapable

conclusion that the risk of bias on the part of

the trial judge in this case was too high to

allow confidence that the case was

adjudicated fairly, by a neutral and detached

arbiter, consistent with the Due Process

Clause of the Federal Constitution.

(Internal citations omitted.)

The district court examined, but did not decide,

Echavarria’s claim that his confession had been obtained by

torture and was therefore improperly admitted (Claim 3). The

district court analyzed Claim 3 in detail, suggesting that it

would have credited Echavarria’s testimony that his

confession had been obtained by torture, but the court

“refrain[ed]” from deciding “whether Echavarria’s Juarez

confession was voluntarily given.” The court wrote that it

took this approach

out of sensitivity to the interests of comity and

federalism, and also considering the interest

of judicial economy. . . . [T]his Court expects

that the issue of the admissibility of

Echavarria’s Juarez confession may be

revisited in state court, before Echavarria’s

retrial, in light of this Court’s ruling that the

trial judge, who previously ruled upon the

admissibility of the Juarez confession, had an

unconstitutional implied bias. Under these

circumstances, the Court will abstain from

ruling on Claim 3, and will, instead, deny the

claim, without prejudice, as moot.
22 ECHAVARRIA V. FILSON

The district court granted habeas based on its ruling that

Echavarria had shown that there was a constitutionally

intolerable risk of judicial bias. It ordered that Nevada

release or retry Echavarria, but stayed its judgment pending

appeal. This appeal followed.

III. Standard of Review

We review the district court’s decision to grant the

petition for habeas corpus de novo. Crittenden v. Chappell,

804 F.3d 998, 1006 (9th Cir. 2015). We review the district

court’s factual findings for clear error. Id.

IV. Discussion

“A fair trial in a fair tribunal is a basic requirement of due

process.” In re Murchison, 349 U.S. 133, 136 (1955). 

“Fairness of course requires an absence of actual bias in the

trial of cases. But our system of law has always endeavored

to prevent even the probability of unfairness.” Id. (emphasis

added).

“[T]he Due Process Clause has been implemented by

objective standards that do not require proof of actual bias. 

In defining these standards the Court has asked whether,

‘under a realistic appraisal of psychological tendencies and

human weakness,’ the interest ‘poses such a risk of actual

bias or prejudgment that the practice must be forbidden if the

guarantee of due process is to be adequately implemented.’” 

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883–84

(2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975))

(internal citations omitted). The test does not require a

showing of actual judicial bias, “though actual bias, if

disclosed, no doubt would be grounds for appropriate relief.” 
ECHAVARRIA V. FILSON 23

Id. at 883. Rather, the test requires only a showing of an

undue risk of bias, based on the psychological temptations

affecting an “average judge.” Id. at 881. For example, in

concluding that there had been an undue risk of bias, the

Supreme Court wrote:

We conclude that Justice Embry’s

participation in this case violated appellant’s

due process rights . . . . We make clear that we

are not required to decide whether in fact

Justice Embry was influenced, but only

whether sitting on the case then before the

Supreme Court of Alabama “would offer a

possible temptation to the average . . . judge to

. . . lead him not to hold the balance nice,

clear and true.” The Due Process Clause

“may sometimes bar trial by judges who have

no actual bias and who would do their very

best to weigh the scales of justice equally

between the contending parties. But to

perform its high function in the best way,

‘justice must satisfy the appearance of

justice.’”

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986) (first

elision added) (internal citations omitted). “The Constitution

requires recusal where ‘the probability of actual bias on the

part of the judge or decisionmaker is too high to be

constitutionally tolerable.’” Hurles v. Ryan, 752 F.3d 768,

788 (9th Cir. 2014) (quoting Withrow, 421 U.S. at 47).

Echavarria claims that there was a constitutionally

intolerable risk of bias, based on FBI Agent Bailey’s criminal

investigation of Judge Lehman.
24 ECHAVARRIA V. FILSON

The Antiterrorism and Effective Death Penalty Act

(“AEDPA”) requires us to give significant deference to the

state court’s last reasoned decision—here, the Nevada

Supreme Court’s decision on appeal from the denial of

Echavarria’s second and third state habeas petitions. See

28 U.S.C. § 2254(d). AEDPA deference applies to claims

that were “adjudicated on the merits in State court

proceedings.” Id.; see Lambert v. Blodgett, 393 F.3d 943,

966 (9th Cir. 2004). An adjudication on the merits is a

“decision finally resolving the parties’ claims . . . that is

based on the substance of the claim advanced, rather than on

a procedural, or other, ground.” Lambert, 393 F.3d at 969

(quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.

2001)). “Any 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). If

a state court denies a federal claim without giving any

explanation, we presume that the decision was an

adjudication on the merits. See Amado v. Gonzalez, 758 F.3d

1119, 1131 (9th Cir. 2014). But if a state court gives an

“explicit explanation of its own decision,” we take the state

court at its word. James v. Ryan, 733 F.3d 911, 916 (9th Cir.

2013). “[W]hen it is clear that a state court has not reached

the merits of a properly raised issue, we must review it de

novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)

(footnote omitted).

Here, the Nevada Supreme Court’s explanation of its

decision on state habeas shows that it adjudicated only

Echavarria’s claim of actual bias. It did not adjudicate his

distinct claim of risk of bias. When the Nevada Supreme

Court was presented with Echavarria’s claim of actual bias on

direct appeal, there was no evidence in the record of Agent

Bailey’s criminal investigation of Judge Lehman. Later,
ECHAVARRIA V. FILSON 25

when presented in state habeas proceedings with evidence of

Agent Bailey’s investigation, the Nevada Supreme Court

wrote:

Echavarria raised a claim of judicial bias on

direct appeal, arguing that the trial judge

made numerous disparagingand embarrassing

comments about counsel. Although it appears

that Echavarria did not learn of Agent

Bailey’s investigation until well after trial, the

incidents he identifies as evidence of judicial

bias were largely raised on direct appeal and

rejected summarily by this court. In his postconviction petition, Echavarria merelyrefined

this claim, contending that the genesis of the

trial judge’s bias was related to Agent

Bailey’s investigation of him. New

information as to the source of the alleged

bias is not so significant as to persuade us to

abandon the doctrine of the law of the case.

(Internal citations omitted.)

By invoking the “law of the case” as the basis for its

denial of state habeas, the Nevada Supreme Court made clear

that it treated its prior decision as “decid[ing] the issue” of

bias “explicitly or by necessary implication.” Dictor v.

Creative Mgmt. Servs., LLC, 223 P.3d 332, 334 (Nev. 2010). 

But on direct appeal, the Nevada Supreme Court had

addressed only a claim of actual bias based on Judge

Lehman’s hostility in court towards Echavarria’s counsel. 

The Nevada Supreme Court could not have addressed

Echavarria’s distinct and later-raised claim of risk of bias,

based on Agent Bailey’s investigation, because Echavarria
26 ECHAVARRIA V. FILSON

had made no such claim on direct appeal. Indeed, at the time

of his direct appeal, Echavarria had no knowledge of the

investigation.

The Nevada Supreme Court’s reasoning in denying

Echavarria’s second and third habeas petitions makes clear

that it decided only “whether the judge [was] actually,

subjectively biased.” Caperton, 556 U.S. at 881. Reviewing

the denial of state habeas, the Nevada Supreme Court

described the evidence of Agent Bailey’s investigation as

“[n]ew information as to the source of the alleged bias.” The

Court deemed the new information insufficient because it did

not convince the Court that Judge Lehman was actually

biased. But actual bias was not the issue in Echavarria’s riskof-bias claim. A showing of a constitutionally intolerable

risk of bias does not require proof of actual bias. Id. at 883;

see also Williams v. Pennsylvania, 136 S. Ct. 1899, 1905

(2016) (“[T]he Court’s precedents apply an objective

standard that, in the usual case, avoids having to determine

whether actual bias is present.”). Indeed, due process “may

sometimes require recusal of judges who have no actual bias

and who would do their very best to weigh the scales of

justice equally.” Hurles, 752 F.3d at 789 (internal quotation

marks and citation omitted).

The Nevada Supreme Court has made a similar error

before. In Rippo v. Baker, 137 S. Ct. 905 (2017) (per

curiam), the Supreme Court “vacate[d] the Nevada Supreme

Court’s judgment because it applied the wrong legal

standard” for a post-conviction claim of judicial bias. Id. at

907. The petitioner alleged that his trial judge was biased

because the judge was the subject of an investigation

involving the local district attorney’s office and Las Vegas

police department. Rippo v. State, 368 P.3d 729, 743 (Nev.
ECHAVARRIA V. FILSON 27

2016) (per curiam), vacated, Rippo v. Baker, 137 S. Ct. 905

(2017) (per curiam). The Nevada Supreme Court had

concluded, “Taking Rippo’s allegations as true, there

remains [n]o factual basis . . . for Rippo’s argument that [the

trial judge] was under pressure to accommodate the State or

treat criminal defendants in state proceedings less favorably

or that he was biased against Rippo because of the

investigation and indictment.” Id. at 744 (internal quotation

marks omitted) (alterations in original). The United States

Supreme Court explained that “[t]he Nevada Supreme Court

did not ask the question our precedents require: whether,

considering all the circumstances alleged, the risk of bias was

too high to be constitutionally tolerable.” Rippo, 137 S. Ct.

at 907.

Here, rather than applying the wrong legal standard to a

risk-of-bias claim, the Nevada Supreme Court never decided

the claim. The district court was therefore correct to review

the claim de novo. We, too, review it de novo. We must

determine “whether the average judge in [Judge Lehman’s]

position is ‘likely’ to be neutral, or whether there is an

unconstitutional ‘potential for bias.’” Caperton, 556 U.S. at

881. The rule is “stringent.” Hurles, 752 F.3d at 789

(quoting Murchison, 359 U.S. at 136). It reaches “[e]very

procedure which would offer a possible temptation to the

average . . . judge to forget the burden of proof . . . or which

might lead him not to hold the balance nice, clear and true

between the State and the accused.” Id. (quoting Tumey,

273 U.S. at 532). It also requires “a realistic appraisal of

psychological tendencies and human weakness.” Id. (quoting

Caperton, 556 U.S. at 883–84).

Judge Lehman was well aware of the FBI’s efforts to

ensure Echavarria’s conviction. The average judge in his
28 ECHAVARRIA V. FILSON

position would have understood the risk entailed in making

rulings favorable to Echavarria. As detailed above, the FBI

marshaled agents and resources from multiple offices and

enlisted the assistance of the Mexican police. The FBI sent

four agents to Echavarria’s interrogation in Mexico. The FBI

provided information used in the confession that Echavarria

signed the next morning. FBI personnel later translated the

confession into English for the prosecution. The FBI’s

involvement in the operation was so deep that Commandante

Rubalcava, the deputy chief of the Mexican police in Juarez,

later believed that he needed to “have a clearance” from the

FBI in order to speak with Echavarria’s counsel. After

Echavarria confessed, FBI agents gathered and analyzed

critical evidence to be used at trial—witnesses, fingerprints,

ballistics, and even glass fragments evaluated by an FBI

forensic geologist.

FBI agents testified at the suppression hearing in state

court. At the conclusion of that hearing, Judge Lehman was

required to choose between the FBI agents’ account of the

interrogation and Echavarria’s. In all, twenty employees of

the FBI testified during proceedings before Judge Lehman,

many of them stressing the fact that Agent Bailey was an FBI

agent.

During voir dire, the prosecution emphasized that “[t]he

murder victim was a special agent with the Federal Bureau of

Investigation.” At trial, the prosecution began its opening

statement the same way: “On[] the 25th of June, 1990, at

about eleven forty-nine a.m., Special Agent John Bailey of

the Federal Bureau of Investigation was inside the Security

Pacific National Bank . . . . He was there on official

business.” In its closing argument, the prosecution reiterated,

“It would be easy enough to, after all this time, . . . to forget
ECHAVARRIA V. FILSON 29

perhaps the very real reason we are 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 exhibit number one, the

photograph of Special Agent John Bailey of the Federal

Bureau of Investigation.”

Based on our de novo review, we hold that Echavarria’s

right to due process was violated. Indeed, on the facts before

us, we would so hold even if we were addressing the question

under the deferential standard of AEDPA. For an average

judge in Judge Lehman’s position there would have been a

constitutionally intolerable risk of bias. An average judge in

that position would have feared that rulings favoring

Echavarria, tipping the outcome towards acquittal or a

sentence less than death, could cost him his reputation, his

judgeship, and possibly his liberty.

The State argues that there was no risk of bias because

federal and state authorities had previously declined to

prosecute Judge Lehman. But the question before us is not

whether, a few years before Echavarria’s trial, Judge Lehman

had escaped prosecution. The question is whether an average

judge in Judge Lehman’s position would have feared that the

FBI might reopen its investigation or renew its advocacy for

state prosecution if he made rulings favorable to Echavarria.

The State also argues that Judge Lehman’s risk of bias

was no different from that of “judges at all levels of the

judicial system [who] are constantly asked to make rulings

that could cut against the interests of state and federal law

enforcement agencies.” That is plainly incorrect. Judge

Lehman was no ordinary judge, and Echavarria was no

ordinary defendant. Rather, Judge Lehman personally had

been criminally investigated by the very FBI agent that
30 ECHAVARRIA V. FILSON

Echavarria was accused of killing, and the case required

Judge Lehman to determine, inter alia, whether FBI agents

had known about or been involved in the use of torture in

obtaining Echavarria’s confession.

In the circumstances of this case, the risk of bias was

extraordinary in both its nature and severity. The risk was

obvious to all who had complete information about Agent

Bailey’s investigation. The FBI met with the prosecutors

specifically to brief them on Agent Bailey’s investigation and

prepare them for “in court and/or appeal motions based on

due process and equal protection considerations and claiming

judicial bias.” (Emphasis added.) Based on what was

revealed in that meeting, the prosecutors appear to have

recognized the importance of informing Echavarria of the

investigation. Indeed, Chief Deputy District Attorney Henry

promised to “suggest a chambers meeting to discuss this with

all counsel present.” But that meeting never took place, and

Echavarria never had the opportunity to request that Judge

Lehman recuse.

Conclusion

The risk of bias in this case deprived Echavarria of the

fair tribunal to which he was constitutionally entitled. We

therefore affirm the district court’s grant of habeas relief. 

Because we affirm the district court on this ground, we do not

reach the other questions presented in this appeal.

AFFIRMED.