FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD BOYDE, 

No. 02-99008 Petitioner-Appellant,

D.C. No.

v.  CV-91-02522-WDK

JILL BROWN, Warden, ORDER Respondent-Appellee. 

Filed September 7, 2005

Before: Jerome Farris, Alex Kozinski and

Barry G. Silverman, Circuit Judges.

ORDER

1. We grant the petition for rehearing and amend the opinion filed April 21, 2005, as provided herein. 

2. On May 24, 2005, we received a letter from the district

judge who presided over Boyde’s federal habeas proceeding

“bring[ing] to the Court’s attention a ‘mistake in [the] disposition.’ ” Letter from the district judge to the clerk of the court

of appeals (May 24, 2005) (quoting Ninth Circuit General

Order No. 12.10) (second alteration in original). In his letter,

the district judge informed us that we had erred in not

remanding this case to the district court for an evidentiary

hearing to determine whether Boyde had been prejudiced by

his attorney’s failure to introduce evidence that Boyde suffered physical abuse as a child and was aware that his sisters

had been sexually abused. On May 25, the day after we

received the district judge’s letter, the mandate in this case

issued due to a clerical error. 

12511
The district judge’s letter was unusual, given that respondent, in the nearly five weeks following the filing of the opinion in this case, had not filed a timely petition for rehearing—

the usual process by which mistakes in our opinions are corrected. One week after receipt of the district judge’s letter by

this court and the parties, respondent filed a Motion to Recall

Mandate and Correct Disposition. This motion essentially

incorporated by reference the arguments in the district judge’s

letter. Following receipt of respondent’s motion, we ordered

the mandate recalled, having been issued due to clerical error,

and construed respondent’s motion to recall the mandate and

correct our opinion as a belated petition for rehearing. We

ordered petitioner to file a response, which he did, opposing

rehearing. 

3. An evidentiary hearing is not always required to determine whether a petitioner has been prejudiced by ineffective

assistance of counsel. See, e.g., Wiggins v. Smith, 539 U.S.

510, 534-38 (2003); Silva v. Woodford, 279 F.3d 825, 847

n.17, 849-50 (9th Cir. 2002); Jackson v. Calderon, 211 F.3d

1148, 1163-64 (9th Cir. 2000). Nevertheless, we exercise our

discretion and order such a hearing here. See Wallace v. Stewart, 184 F.3d 1112, 1118 (9th Cir. 1999). 

We recognize, however, that the district judge who previously denied Boyde’s habeas petition may be viewed as having assumed the role of advocate by picking up the baton

respondent had dropped and sending us a letter that provided

a template for respondent’s tardy petition for rehearing.

Although the district court committed no impropriety in sending the letter, we remand to the Chief Judge of the Central

District of California with instructions to reassign the case to

a different judge to ensure not only the existence, but the

appearance, of impartiality at the evidentiary hearing. See M.

Margaret McKeown, Don’t Shoot the Canons: Maintaining

the Appearance of Propriety Standard, 7 J. App. Prac. & Process 45, 53-58 (2005) (discussing the importance of maintaining the appearance of judicial impartiality). 

12512 BOYDE v. BROWN
Following reassignment, the district court shall conduct an

evidentiary hearing to consider Boyde’s ineffective assistance

of counsel claim relating to his attorney’s failure to introduce

evidence during the penalty phase that Boyde suffered physical abuse as a child and was aware that his sisters had been

sexually abused. Based upon the evidence produced at this

hearing, the district court will determine whether there was “a

reasonable probability that the jury would have imposed a different sentence but for the errors Boyde’s counsel made.”

Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005) (citing

Strickland v. Washington, 466 U.S. 668, 694 (1984)). 

Petition for rehearing GRANTED; opinion AMENDED;

and the case REMANDED with instructions. 

No further petitions for rehearing will be accepted. The

mandate shall issue forthwith. See Fed. R. App. P. 2.

BOYDE v. BROWN 12513
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