FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD D. HURLES,

Petitioner-Appellant,

v.

CHARLES L. RYAN

*

,

Respondent-Appellee.

No. 08-99032

D.C. No.

2:00-cv-0118-RCB

ORDER AND

OPINION

Appeal from the United States District Court

for the District of Arizona

Robert C. Broomfield, Senior District Judge, Presiding

Argued and Submitted

October 7, 2010—Pasadena, California

Filed May 16, 2014

Before: Harry Pregerson, Dorothy W. Nelson,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge Ikuta

* Charles L. Ryan is substituted for his predecessor, Dora B. Schriro,

as Director for the Arizona Department of Corrections. Fed. R. App. P.

43(c)(2).
2 HURLES V. RYAN

SUMMARY**

Habeas Corpus/Death Penalty

The panel withdrew its opinion filed January 18, 2013;

filed a new opinion affirming in part and denying in part the

district court’s denial of a 28 U.S.C. § 2254 habeas corpus

petition challenging a capital murder conviction and death

sentence; denied the warden’s motion for ruling on her

February 1, 2013, petition for rehearing en banc; allowed the

parties to file a petition for rehearing and rehearing en banc

with respect to the new opinion; and granted in part and

denied in part the petitioner’s motion to remand.

The petitioner, an Arizona state prisoner, moved to

remand for reconsideration of procedural default in light of

Martinez v. Ryan, 132 S.Ct. 1309 (2012). The panel granted

the motion as to appellate counsel’s failure to challenge the

trial court’s denial of neurological testing, but otherwise

denied the motion. 

The panel held that the state court reasonably denied the

petitioner’s claims that sentencing counsel failed to explain

how the petitioner’s mental illness and deficiencies affected

his conduct at the time of the crime, depriving him of the

effective assistance of counsel.

The panel held that the state court reasonably denied the

petitioner’s claim that appellate counsel was ineffective by

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

been prepared by court staff for the convenience of the reader.
HURLES V. RYAN 3

not challenging the trial court’s failure to weigh mitigating

evidence cumulatively. 

The panel held that the state court came to an

unreasonable determination of the facts in denying the

petitioner’s claim that the trial judge’s failure to recuse

herself denied the petitioner due process of law. The panel

remanded for an evidentiary hearing on the claim of judicial

bias.

Dissenting, Judge Ikuta wrote that the majority offers a

new way to evade AEDPA deference: make an unsupported

– and unsupportable – assertion that the state court’s fact

finding process is “unreasonable” for purposes of 28 U.S.C.

§ 2254(d)(2).

COUNSEL

Denise I. Young and Michael Aaron Harwin, Tucson,

Arizona, for Petitioner-Appellant.

Terry Goddard, Attorney General, Kent E. Cattani and J.D.

Nielsen, Office of the Arizona Attorney General, Capital

Litigation Section, Phoenix, Arizona, for RespondentAppellee.
4 HURLES V. RYAN

ORDER

The opinion filed January 18, 2013, and appearing at

706 F.3d 1021, is withdrawn, Carver v. Lehman, 558 F.3d

869, 878–79 (9th Cir. 2009), and is replaced by the opinion

filed concurrently with this order. Our prior opinion may not

be cited as precedent to any court. The parties may file a

petition for rehearing and rehearing en banc with respect to

the opinion filed together with this order.

IT IS SO ORDERED.

OPINION

D.W. NELSON, Senior Circuit Judge:

Petitioner Richard D. Hurles appeals the district court’s

denial of his federal habeas petition challenging his

conviction for capital murder and the imposition of his death

sentence. Hurles argues that the district court erred in

denying his claims of judicial bias and ineffective assistance

of sentencing and appellate counsel, and in finding various

claims procedurally defaulted. We remand for an evidentiary

hearing on Hurles’s claim of judicial bias. We also grant in

part Hurles’s motion for a remand pursuant to Martinez v.

Ryan, 132 S.Ct. 1309 (2012), and remand for consideration of

appellate counsel’s failure to challenge the trial court’s denial

of neurological testing. We otherwise affirm the district court

and deny Hurles’s motion.
HURLES V. RYAN 5

I. Background

Hurles, on parole after serving nearly fifteen years for

prior crimes, went to the library in Buckeye, Arizona on a

November afternoon in 1992. State v. Hurles, 914 P.2d 1291,

1293 (1996) (en banc). He attacked librarian KayBlanton by

attempting to rape her and then stabbing her thirty-seven

times. Id. Hurles left the library, cleaned himself up,

discarded his bloody clothes and fled on a bus to Las Vegas,

Nevada. Id. at 1294. The state charged Hurles with burglary,

first-degree murder, first-degree felonymurder and attempted

sexual assault. Id. at 1293.

The court appointed an attorney to represent Hurles, an

indigent. That attorney moved for the appointment of cocounsel when the State decided to seek the death penalty. 

Defense counsel cited numerous reasons necessitating cocounsel, among them, the many witnesses, the State’s

intention to utilize forensic experts, the need to maintain a

productive client relationship and the dense and detailed

preparation necessary for both phases of trial. The trial court

summarily denied the motion.

Defense counsel brought a petition for special action in

the Arizona Court of Appeals. The petition challenged the

denial of the motion to appoint co-counsel as violating

Hurles’s rights to due process, equal protection and the

adequate assistance of counsel. The real party in interest, the

State of Arizona, declined to respond to the petition because

it lacked standing to do so. Hurles v. Superior Court, 849

P.2d 1, 2 (Ariz. Ct. App. 1993). However, the petition named

the trial judge, Ruth Hilliard, as the respondent, as required

by Arizona law. Ariz. R. P. Special Actions 2(a). This

nominal designation “is a mere formality,” and the trial judge
6 HURLES V. RYAN

“has no interest in the litigation and should have no interest

in the way the case is decided.” State ex rel. Dean v. City

Court, 598 P.2d 1008, 1000–11 (Ariz. Ct. App. 1979). 

Nonetheless, Judge Hilliard filed a responsive pleading,

months before the presentation of any evidence in the case

against Hurles, that defended her ruling below.

In her response, Judge Hilliard described the murder as

“brutal.” She noted that defense counsel had not noticed any

defenses, had not disclosed the names of trial witnesses, had

not requested an examination of Hurles and that it was not

known whether Hurles would present a mental health expert

at trial. Judge Hilliard nevertheless described the state’s case

against Hurles as “verysimple and straightforward, compared

to other capital cases” and predicted that it would not involve

an inordinate amount of witness testimony. She argued that

the denial of second counsel was rationally related to the

state’s duty to preserve its resources, noting that Hurles had

failed to show that his case was “any more complex or

difficult to prepare than almost any other criminal case.” 

Judge Hilliard referenced the rules of professional conduct

and stated that if defense counsel believed that she could not

render competent representation, she was bound to withdraw

and, quite possibly, to withdraw her name from the list of

attorneys who contracted with the county to serve as

appointed counsel. Judge Hilliard concluded, “Clearly there

are other attorneys who provide contract services for

Maricopa County who would be able to provide competent

representation in a case as simple as this.”

The Arizona Court of Appeals published a decision

denying Judge Hilliard standing to appear in the special

action and ruling it improper for judges to file pleadings in

special actions solely to advocate the correctness of an
HURLES V. RYAN 7

individual ruling in a single case. Hurles, 849 P.2d at 3–5. 

The court noted that the presiding criminal judge, not Judge

Hilliard, requested the filing of a responsive pleading and that

there was no contact between Judge Hilliard and the Arizona

Attorney General’s office as the pleading was prepared. Id.

at 2, n.2. However, Colleen French, of the Arizona Attorney

General’s Office, represented Judge Hilliard in the special

action proceeding and later admitted to having had some

communication with Judge Hilliard about this matter. In

opposing a motion to disqualify the Arizona Attorney

General’s Office from representing the state, French

referenced her “communications with [Judge Hilliard] during

the special action proceedings” but did not describe their

nature of content. The record is ambiguous as to the nature

and extent of those communications.

Addressing Judge Hilliard’s participation in the special

action proceeding, the court of appeals held that it was “of the

inappropriate ‘I-ruled-correctly’ sort” Hurles, 849 P.2d at 4. 

The court explained that “at every level of the judiciary,

judges are presumed to recognize that they must do the best

they can, ruling by ruling, with no personal stake—and surely

no justiciable stake—in whether they are ultimately affirmed

or reversed.” Id. The court stated that “[t]his principle,

which is essential to impartial adjudication, does not change

from direct appeal to special action, merely because the judge

is a nominal respondent in the latter.” Id. The court then

held that Judge Hilliard lacked standing to file a responsive

pleading and declined to consider the pleading filed in her

name. Id.

Judge Hilliard continued to preside over Hurles’s trial. A

jury found Hurles guilty of all charges. Judge Hilliard then

conducted an aggravation and mitigation hearing to determine
8 HURLES V. RYAN

the appropriate sentence for Hurles. Arizona’s capital

sentencing scheme provided at the time of trial that Judge

Hilliard, sitting alone, would determine the presence or

absence of the aggravating factors required by state law for

the imposition of the death penalty. Ring v. Arizona,

536 U.S. 584, 588 (2002). The Supreme Court has since held

that capital defendants are entitled to a jury determination of

any fact that would support the imposition of a death

sentence. Id. at 589. At the aggravation and mitigation

hearing, Hurles offered substantial mitigating evidence,

including his markedly dysfunctional family background,

cognitive deficiencies, long-term substance abuse, mental

illness, good behavior while incarcerated and an expert

opinion that Hurles suffered diminished capacity at the time

of the crime.

Following the presentation of penalty phase evidence,

Judge Hilliard found one statutory aggravating factor: that

Hurles committed the crime in an especially cruel, heinous

and depraved manner. She found two nonstatutorymitigating

circumstances: that Hurles suffered a deprived childhood in

a clearly dysfunctional home and that he behaved well in

prison prior to the underlying crime. She concluded that

these circumstances did not warrant leniency and condemned

Hurles to die. The Arizona Supreme Court affirmed Hurles’s

conviction and sentence on appeal. Hurles, 914 P.2d at 1300.

Hurles filed his first petition for post-conviction review

(“PCR”) in 1999. Judge Hilliard presided over this PCR. 

French, the same attorney who represented Judge Hilliard in

the prior special action proceeding, represented the state. 

Judge Hilliard denied the PCR, and the Arizona Supreme

Court summarily affirmed.
HURLES V. RYAN 9

Hurles commenced federal habeas proceedings in 2000. 

He then returned to state court to file a second PCR raising

additional claims, including one of judicial bias. Hurles

moved to recuse Judge Hilliard from presiding over his

second PCR. The motion was referred to another judge and

denied. Judge Hilliard then denied Hurles’s second PCR, and

the Arizona Supreme Court summarily affirmed.

Hurles returned to federal court and filed an amended

habeas petition, raising ten claims. The district court denied

most of them as procedurally barred. After additional

briefing, the district court denied the remainder of Hurles’s

claims on the merits and certified four issues for appeal to

this Court.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 2253. We

review de novo the district court’s denial of Hurles’s habeas

petition, and we review the district court’s findings of fact for

clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.

2007). We review for abuse of discretion the determination

that a petitioner is not entitled to an evidentiary hearing. 

Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). 

Because Hurles filed his federal habeas petition after 1996,

the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs this case. Lindh v. Murphy, 521 U.S.

320, 336 (1997).

AEDPA places limitations on a federal court’s power to

grant a state prisoner’s federal habeas petition. Cullen v.

Pinholster, 131 S.Ct. 1388, 1398 (2011). When a state court

has adjudicated a claim on the merits, we may grant relief

only if the adjudication of that claim “(1) resulted in a
10 HURLES V. RYAN

decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined

by the Supreme Court of the United States, or (2) resulted in

a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state

court proceeding.” 28 U.S.C. § 2254(d). To determine the

relevant clearly established federal law, we look to the

holdings, but not the dicta, of the Supreme Court at the time

the state court adjudicated the claim on the merits. Terry

Williams v. Taylor, 529 U.S. 362, 412 (2000). In considering

whether the state court unreasonably applied clearly

established federal law, we are limited to the record before

the state court that adjudicated the claim on the merits. 

Pinholster, 131 S.Ct. at 1398).

An unreasonable application of federal law results where

the “the state court identifies the correct governing legal rule

from [Supreme Court] cases but unreasonablyapplies it to the

facts of the particular state prisoner’s case,” or if it “either

unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonablyrefuses to extend that principle to a new context

where it should apply.” Williams, 529 U.S. at 407; see also

Panetti v. Quarterman, 551 U.S. 930, 953 (holding that

AEDPA does not require habeas courts to await “some nearly

identical factual pattern” before applying a clearlyestablished

rule, nor does it prohibit “finding an application of a principle

unreasonable when it involves a set of facts different from

those of the case in which the principle was announced”)

(internal quotation marks and citations omitted). We cannot

grant relief unless the state court came to a decision that was

objectively unreasonable. Williams, 529 U.S. at 410.
HURLES V. RYAN 11

We cannot find that the state court made an unreasonable

determination of the facts in this case simply because we

would reverse in similar circumstances if this case came

before us on direct appeal. Taylor v. Maddox, 366 F.3d 992,

1000 (9th Cir. 2004). Instead, we must be “convinced that an

appellate panel, applying the normal standards of appellate

review, could not reasonably conclude that the finding is

supported by the record” before the state court. Id. To find

the state court’s fact finding process defective in a material

way, or, perhaps, completely lacking, “we must more than

merely doubt whether the process operated properly. Rather,

we must be satisfied that any appellate court to whom the

defect is pointed out would be unreasonable in holding that

the state court’s fact-finding process was adequate.” Id.

If we determine, considering only the evidence before the

state court, that the adjudication of a claim on the merits

resulted in a decision contrary to or involving an

unreasonable application of clearlyestablished federal law, or

that the state court’s decision was based on an unreasonable

determination of the facts, we evaluate the claim de novo, and

we may consider evidence properly presented for the first

time in federal court. Pinholster, 131 S.Ct. at 1401.

III. Discussion

A. Ineffective Assistance of Counsel

Hurles brought various claims of ineffective assistance of

counsel (“IAC”) in his federal habeas petition, all of which

the district court either dismissed as procedurally defaulted or

denied on the merits.
12 HURLES V. RYAN

To bring a successful IAC claim, Hurles must show

counsel’s deficient performance and prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Deficient

performance requires a showing that trial counsel’s

representation fell below an objective standard of

reasonableness as measured byprevailing professional norms. 

Wiggins v. Smith, 539 U.S. 510, 521 (2003). “A court

considering a claim of ineffective assistance must apply a

‘strong presumption’ that counsel’s representation was within

the ‘wide range’ of reasonable professional assistance.” 

Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (quoting

Strickland, 466 U.S. at 689). Hurles bears the burden of

showing “that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Strickland, 466 U.S. at 687. To

establish prejudice, Hurles must show a reasonable

probability that “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at

694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. “It is not enough

‘to show that the errors had some conceivable effect on the

outcome of the proceeding.’ Counsel’s errors must be ‘so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.’” Richter, 131 S.Ct. at 787–88 (quoting

Strickland, 466 U.S. at 693, 687).

“The standards created by Strickland and [AEDPA] are

both highly deferential, and when the two apply in tandem,

review is doubly so.” Richter, 131 S.Ct. at 788 (internal

quotation marks and citations omitted). In considering the

state court’s denial of Hurles’s IAC claims, “[t]he pivotal

question is whether the state court’s application of the

Strickland standard was unreasonable.” Id. at 785. We do

not ask, in the first instance, whether counsel’s performance
HURLES V. RYAN 13

fell below Strickland’s standard because “‘an unreasonable

application of federal law is different from an incorrect

application of federal law.’” Id. (quoting Williams, 529 U.S.

at 410). We must “guard against the danger of equating

unreasonableness under Strickland with unreasonableness

under [AEDPA] . . . . The question is whether there is any

reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. at 788. We are mindful that a

“state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Id.

at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)).

1. Procedurally Defaulted IAC Claims

The warden contends that Hurles procedurally defaulted

five of his IAC claims. Hurles moves to remand for

reconsideration of procedural default in light of Martinez v.

Ryan, 132 S.Ct. 1309 (2012). We grant the motion as to

appellate counsel’s failure to challenge the trial court’s denial

of neurological testing, and we remand on that basis. We

otherwise deny Hurles’s motion.

The relevant claims include trial counsel’s failure to

locate a key guilt phase witness and appellate counsel’s

failure to raise (1) the denial of a request for neurological

testing, (2) the consideration of improper victim statements,

(3) that, generally, Arizona’ death penalty statute fails to

narrow the class of death-eligible defendants and (4) that,

specifically, Arizona’s F(6) statutory aggravating factor fails

to narrow the class of death-eligible defendants.
14 HURLES V. RYAN

Hurles procedurallydefaulted these claims when he failed

to raise them before the Arizona Supreme Court. See Zichko

v. Idaho, 247 F.3d 1015, 1021–22 (9th Cir. 2001) (“A habeas

petitioner must present his claims to the highest state court in

order to satisfy the exhaustion requirement of [AEDPA].”). 

“[T]he procedural default rule barring consideration of a

federal claim ‘applies . . . if it is clear that the state court

would hold the claim procedurally barred.’” Franklin v.

Johnson, 290 F.3d 1223, 1230–31 (9th Cir. 2002) (quoting

Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)). If Hurles

presented these IAC claims to the Arizona Supreme Court

now, the court would dismiss them as waived. Ariz. R. Crim.

P. 32.2 (waiver with narrow exceptions not applicable here). 

Thus, Hurles’s failure to present these claims to the state

supreme court “‘in a timely fashion has resulted in a

procedural default of those claims.’” Zichko, 247 F.3d at

1022 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999)); see also Coleman v. Thompson, 501 U.S. 722, 732

(1991), overruled on other grounds by Martinez v. Ryan,

132 S.Ct. 1309, 1315 (2012) (holding petitioner “defaulted

his federal claims in state court,” so, met “technical

requirements for exhaustion” because “no state remedies

[were] available to him”) (internal quotation marks and

citations omitted).

For the procedural default rule to apply, “the application

of the state procedural rule must provide an adequate and

independent state law basis on which the state court can deny

relief.” Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003)

(amended) (internal quotation marks and citations omitted). 

Arizona’s waiver rules are independent and adequate bases

for denying relief. Stewart v. Smith, 536 U.S. 856, 859–60

(2002) (per curiam) (holding denials pursuant to Arizona

waiver rules are independent of federal law); Ortiz v. Stewart,
HURLES V. RYAN 15

149 F.3d 923, 931–32 (9th Cir. 1998) (finding Arizona

waiver rule consistently and regularly applied).

Now that we have found “an independent and adequate

state procedural ground, ‘federal habeas review is barred

unless [Hurles] can demonstrate cause for the procedural

default and actual prejudice, or [can] demonstrate that the

failure to consider the claims will result in a fundamental

miscarriage of justice.’” Bennett, 322 F.3d at 580 (quoting

Noltie v. Peterson, 9 F.3d 802, 804–05 (9th Cir. 1993)).

In our amended opinion filed on January 18, 2013, we

affirmed the district court’s holding of procedural default as

to these claims. After we filed our amended opinion,

however, Hurles moved to remand pursuant to Martinez v.

Ryan, 132 S.Ct. 1309, an intervening Supreme Court

decision. Martinez held that “[i]nadequate assistance of

counsel at initial-review collateral proceedings may establish

cause for a prisoner’s procedural default of a claim of

ineffective assistance of counsel at trial.” 132 S.Ct. at 1315. 

In his motion to remand, Hurles argues that this very

circumstance exists here: The ineffectiveness of counsel at

his post-conviction proceedings caused Hurles to default

substantial claims of ineffective assistance of trial and

appellate counsel. Thus, he argues, the Martinez exception to

procedural default applies, and we should remand for further

proceedings as to that issue. We took that motion under

submission pending the resolution of Detrich v. Ryan, — F.3d

—, 2013 WL 4712729, (9th Cir. Sep. 3, 2013) (en banc).

In Detrich, the district court held several of the

petitioner’s claims of ineffective assistance of trial counsel

procedurally defaulted because, like Hurles, Detrich failed to

raise those claims during his initial state post-conviction
16 HURLES V. RYAN

relief proceedings. Id. at *1. Sitting en banc, we remanded

to the district court pursuant to Martinez to determine

whether cause existed to excuse post-conviction counsel’s

procedural default. Id. at *9. Detrich confirmed that a

remand is appropriate where post-conviction counsel’s failure

to raise a claim of ineffective assistance of trial counsel may

have caused the procedural default of that claim. It did not

speak, however, to the question here, which is whether

remand is appropriate where the defaulted claim alleges the

ineffective assistance of appellate counsel.

Nonetheless, we recently decided Nguyen v. Curry,

— F.3d —, 2013 WL 6246285 (9th Cir. Dec. 4, 2013), which

addresses this very question. In Nguyen, we held that

“Martinez applies to the failure to raise not only a claim of

trial-counsel IAC, but also a claim of appellate-counsel IAC.” 

Id. at *1 (emphasis added).” The Nguyen Court thus

remanded for “the district court to determine in the first

instance whether [the petitioner’s] procedural default should

be excused under Martinez.” Id.

To establish cause for the procedural default of an IAC

claim, Hurles must show that post-conviction counsel was

ineffective pursuant to Strickland v. Washington, 466 U.S.

668 (1984), in not raising a particular claim. Martinez, 132

S.Ct. at 1318. Specifically, Hurles must demonstrate

counsel’s performance was deficient and that this deficient

performance prejudiced the defense. Strickland, 466 U.S. at

687. Hurles also must show that the underlying IAC claim is

“substantial,” meaning that it “has some merit.” Martinez,

132 S.Ct. at 1318. We discuss each claim in turn to consider

whether Hurles has established cause to excuse the default of

his IAC claims.
HURLES V. RYAN 17

First, Hurles claims that trial counsel failed to conduct an

adequate guilt phase investigation. Trial counsel never

disputed that Hurles caused the victim’s death but argued that

Hurles was M’Naughton insane at the time of the crime. 

Ariz. Rev. Stat. 13-502(A) (1993) (“A person may be found

guilty except insane if at the time of the commission of the

criminal act the person was afflicted with a mental disease or

defect of such severity that the person did not know the

criminal act was wrong.”); see also Clark v. Arizona,

548 U.S. 735, 748–56 (2006) (upholding as constitutional the

1993 amendments to Arizona’s insanity law in effect at the

time of Hurles’s trial).

To establish this defense, trial counsel presented expert

testimony that Hurles was in a psychotic state of mind at the

time of the murder due to brain damage, and so did not know

what he was doing or that it was wrong. Hurles also alleges,

however, that hours before the murder, he had consensual sex

with a woman who was not the victim. Trial counsel did not

identify, locate or question this woman.

Certainly, we have held that counsel must conduct an

adequate investigation to prepare a mental health defense in

a capital case. See, e.g., Bloom v. Calderon, 132 F.3d 1267,

1277–78 (9th Cir. 1997). Adequate counsel would have

tracked down this witness, as she was the last person to have

intimate orsubstantial contact with Hurles close in time to the

crime. Conceivably, she could have provided crucial insight

into his behavior and mental state just hours before the

murder, which would relate to his insanity defense at the guilt

phase. This testimony also might have proved helpful at the

sentencing phase of trial. See Ariz. Rev. Stat. § 13-703

(G)(1) (1991) (listing as a mitigating factor “[t]he defendant’s

capacity to appreciate the wrongfulness of his conduct or to
18 HURLES V. RYAN

conform his conduct to the requirements of law was

significantly impaired, but not so impaired as to constitute a

defense to prosecution.”). Counsel’s failure to investigate

and locate this witness appears deficient. See, e.g., Silva v.

Woodford, 279 F.3d 825, 842 (9th Cir. 2002) (“[A]n

attorney’s failure to investigate, during either the guilt phase

or the sentencing phase of a capital trial, can amount to

constitutionally deficient performance.”).

Though counsel’s performance likely proved deficient,

Hurles has not established prejudice. To do so, Hurles must

show a reasonable probability that but for counsel’s failure to

track down the witness, the result of the guilt phase would

have been different. See Strickland, 466 U.S. at 694. “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. Federal post-conviction

counsel sought and obtained funding for an investigator to

locate this witness. There is nothing in the record to suggest

that she has been found, and we can only speculate as to the

nature of her testimony and whether it would have helped or

undermined Hurles’s insanity defense. Thus, Hurles’s “claim

of prejudice amounts to mere speculation,” Cooks v.

Spalding, 660 F.2d 738, 740 (9th Cir. 1981), and he has not

established cause to excuse the procedural default of this

claim.

Additionally, Hurles makes several claims of ineffective

assistance of appellate counsel. The first is that appellate

counsel failed to challenge the trial court’s denial of Hurles’s

request for neurological testing to support his insanity

defense—his only defense at trial. Hurles contends that the

denial of funds violated his due process rights pursuant to Ake

v. Oklahoma, 470 U.S. 68 (1985).
HURLES V. RYAN 19

Hurles retained Dr. Marc. S. Walter as an expert at trial. 

Dr. Walter opined that based on a neuropsychological exam,

Hurles suffered from physiological brain damage and

recommended a Computer-assisted Topographic Mapping

(“CTM”) test to substantiate his opinion. The state’s expert,

psychiatrist Dr. Alexander Don, agreed that to verify brain

impairment, Hurles would need to undergo “some objective

neurological investigation, like a CTM scan.”

Trial counsel requested funds for a CTM examination. 

The trial court denied this request. At trial, the prosecutor

cross-examined Dr. Walter, asking what tests would verify

brain damage and whether those tests had been conducted. 

Dr. Walter testified that the relevant tests that would show

brain damage had not been conducted. The state’s expert

then testified that “there would need to be further studies” to

confirm brain damage and that “if [a] practitioner suspects

brain injury, then it ought to be able to be demonstrated

objectively on testing.” After the guilt phase ended but

before the sentencing hearing, the trial court approved funds

for a brain scan. Dr. Drake Duane conducted the CMT and

found an “abnormality in the left frontal region” that is

associated with “processing difficulty.”

In Ake, the Supreme Court held that “when a State brings

its judicial power to bear on an indigent defendant in a

criminal proceeding, it must take steps to assure that the

defendant has a fair opportunity to present his defense.” 

470 U.S. at 76. The Court held that “when a defendant

demonstrates to the trial judge that his sanity at the time of

the offense is to be a significant factor at trial, the State must,

at a minimum, assure the defendant access to a competent

psychiatrist who will conduct an appropriate examination and

assist in the evaluation, preparation, and presentation of the
20 HURLES V. RYAN

defense.” Id. at 83. Hurles’s sanity was not just a significant

factor at trial—it was his entire defense at the guilt phase. 

This case is not like Vickers v. Stewart, where the petitioner

sought out-of-state testing that would have taken several

weeks where nearly “every . . . expert who provided evidence

in the case[] agreed that no amount of testing could establish

whether [the petitioner] had in fact suffered a seizure at the

time of the offense”—the key to establishing the insanity

defense. 144 F.3d 613, 615–16 (9th Cir. 1998). Nor did

Hurles seek the appointment of a third psychiatrist as did the

petitioner in Leavitt v. Arave, 646 F.3d 605, 610 (9th Cir.

2011).

Here, the sole defense at guilt was insanity, and Hurles’s

expert offered testimony in support of that defense. The state

offered a contrary opinion, resulting in a battle of the experts. 

Both experts agreed that objective testing could show brain

damage, but the trial court denied funding for this test until

after the guilt phase concluded. The state used the absence of

such an objective test to its advantage, tipping the scales of

the battle of the experts in its favor.

Appellate counsel’s failure to raise this claim on appeal

was deficient. Appellate counsel “unreasonably failed to

discover nonfrivolous issues” to appeal, and Hurles’s Ake

claim was “clearly stronger than those presented” on appeal. 

Smith v. Robbins, 528 U.S. 259, 285, 288 (2000) (internal

quotation marks omitted). Hurles also can show prejudice

from this error, as the brain scan conducted after trial showed

brain damage. The Supreme Court held in Martinez that

“[a]llowing a federal habeas court to hear a claim of

ineffective assistance of [appellate] counsel when an

attorney’s errors . . . caused a procedural default in an intialreview collateral proceeding acknowledges, as an equitable
HURLES V. RYAN 21

matter, that the initial-review collateral proceeding, if

undertaken . . .with ineffective counsel, may not have been

sufficient to ensure that proper consideration was given to a

substantial claim.” Martinez, 132 S.Ct. at 1318. We find

cause sufficient to excuse the procedural default of Hurles’s

Ake claim and remand.

Hurles also contends that appellate counsel performed

inadequately by failing to challenge the trial court’s

consideration of improper victim impact evidence. The trial

court considered the presentence report, which included a

statement from the victim’s husband that the “death penalty

is the only viable option” and that the “death penalty will not

change things but the punishment fits the crime.” The report

also included the homicide detective’s opinion that the “death

penalty is the appropriate sentence.” The victim’s family also

made live statements before the trial court. The victim’s

husband stated that “the only sentence that’s commensurate

with the crime . . . is the death penalty.” The victim’s

daughter acknowledged that the court could not inflict on

Hurles “the amount of violence and horrendous waythat [her]

mom died” but that the court could make sure no other family

had to go through what hers had. Hurles argues that this

evidence violated his Eighth Amendment rights pursuant to

Booth v. Maryland, 482 U.S. 496 (1987) and Payne v.

Tennessee, 501 U.S. 808 (1991).

Hurles has not demonstrated that he was denied the

adequate assistance of counsel on appeal. We have held that

even where victim impact statements “‘serve no other

purpose than to inflame the jury and divert it from deciding

the case on the relevant evidence concerning the crime and

the defendant,’” that worry falls away when a judge, rather

than a jury, sentences a defendant to death. Rhoades v.
22 HURLES V. RYAN

Henry, 638 F.3d 1027, 1055 (9th Cir. 2010) (quoting Booth,

482 U.S. at 508); see also Gulbrandson v. Ryan, 738 F.3d

967, 996 (9th Cir. 2013) (“[C]ourts must assume that the trial

judge properly applied the law and considered only the

evidence he knew to be admissible.”) (internal quotation

marks and citation omitted); State v. Roscoe, 910 P.2d 635,

653 (Ariz. 1996) (holding evidence focusing on the impact of

a capital crime on the victim’s family is relevant).

Finally, we see no reason to remand Hurles’s claims that

appellate counsel failed to raise constitutional challenges to

Arizona’s death penalty statute. Hurles argues that the statute

generally fails to narrow the class of defendants subject to the

death penalty, as does the “especially cruel, heinous or

depraved” aggravating factor included in the statute. The

district court found these claims unexhausted and

procedurally defaulted but addressed them on the merits

anyway and denied them in a reasoned decision. Because a

court has reviewed Hurles’s claims challenging the

constitutionality of Arizona’s death penalty statute, we deny

his motion as to these claims. Cf. Martinez, 132 S.Ct. at 1316

(noting that “if counsel’s errors in an initial-review collateral

proceeding do not establish cause to excuse the procedural

default in a federal habeas proceeding, no court will review

the prisoner’s claims”). We remand for consideration by

the district court in the first instance Hurles’s claim that

appellate counsel failed to raise the Ake claim on appeal. The

district court should afford Hurles an evidentiary hearing on

this issue if one is warranted and shall enter a new judgment

on the remanded claim.
HURLES V. RYAN 23

2. Sentencing Counsel

Hurles claims that sentencing counsel failed to explain

how Hurles’s mental illness and deficiencies affected his

conduct at the time of the crime, depriving him of the

effective assistance of counsel. The state court reasonably

denied this claim.

As discussed, to bring a successful IAC claim, Hurles

must show deficiency and prejudice. Strickland, 466 U.S. at

687.

Hurles contends that trial counsel failed to draw a causal

nexus between his mental health problems and his conduct at

the time of the crime, thus, the mental health evidence

presented at sentencing proved worthless. State v. Wallace,

773 P.2d 983 (Ariz. 1989) (en banc) (“A difficult family

background is a relevant mitigating circumstance if a

defendant can show that something in that background had an

effect or impact on his behavior that was beyond the

defendant’s control.”); see also State v. Greene, 967 P.2d

106, 117 (Ariz. 1998) (en banc) (“This court has held that

family background may be a substantial mitigating

circumstance when it is shown to have some connection with

the defendant’s offense-related conduct.”) (internal quotation

marks and citations omitted).

Counsel did not perform deficiently. First, Supreme

Court precedent existing at the time of trial did not require

showing a causal nexus between mitigating evidence and the

crime. In fact, the Supreme Court had held that “the

sentencer in capital cases must be permitted to consider any

relevant mitigating factor.” Eddings v. Oklahoma, 455 U.S.

104, 112 (1982) (emphasis added) (explaining Lockett v.
24 HURLES V. RYAN

Ohio, 438 U.S. 586 (1978) (plurality)); see also Lockett,

438 U.S. at 604 (“[T]he Eighth and Fourteenth Amendments

require that the sentencer . . . not be precluded from

considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances

of the offense that the defendant proffers as a basis for a

sentence less than death.”). Therefore, counsel did not

perform below the objective standard of care when she did

not establish a causal nexus between Hurles’s mental

conditions and the crime.

Moreover, counsel conducted a rather thorough penalty

phase investigation and presented voluminous mitigating

evidence. She called four witnesses to testify to Hurles’s

dysfunctional family background, mental and psychological

disabilities and good behavior while incarcerated before the

underlying crime. She commissioned a detailed social history

that catalogued Hurles’s maladjusted family circumstances

and deprived life, and that contained affidavits from family

members and others who knew Hurles. In her briefing before

the trial court, defense counsel highlighted Hurles’s

intoxication at the time of the crime. Trial counsel also

adeptly cross-examined the state’s psychiatrist.

On this record, we cannot say that counsel’s efforts fell

short of what the Constitution requires. Porter v. McCollum,

130 S.Ct. 447, 453 (2009) (finding counsel’s failure to

investigate and present mitigating evidence, which did not

reflect reasonable professional judgment, deficient and

prejudicial); Rompilla v. Beard, 545 U.S. 374, 390 (2005)

(finding deficient and prejudicial counsels’ failure to examine

court file relating to petitioner’s prior conviction); Wiggins,

539 U.S. at 532, 538 (granting petition where counsel

conducted unreasonably insufficient mitigation investigation
HURLES V. RYAN 25

that fell short of prevailing professional standards); see also

Wong v. Belmontes, 130 S.Ct. 383, 385 (2009) (per curiam)

(denying IAC claim where counsel “understood the gravity of

th[e] aggravating evidence” and “built his mitigation strategy

around the overriding need to exclude it). The state court

reasonably denied this claim.

3. Appellate Counsel

Hurles alleges that appellate counsel denied him the

effective assistance of counsel by not challenging the trial

court’s failure to weigh the mitigating evidence cumulatively. 

The state court reasonably denied this claim.

A criminal defendant enjoys the right to the effective

assistance of counsel on appeal. Evitts v. Lucey, 469 U.S.

387, 391–97 (1985). We consider claims of ineffective

assistance of appellate counsel according to the standard set

forth in Strickland, 466 U.S. 668. Miller v. Keeney, 882 F.2d

1428, 1433–34 (9th Cir. 1989). Hurles must show that

appellate counsel’s representation fell below an objective

standard of reasonableness, and that, but for counsel’s errors,

a reasonable probability exists that he would have prevailed

on appeal. Id. at 1434.

The trial judge found beyond a reasonable doubt that

Hurles committed the crime in an especially heinous, cruel

and depraved manner, a statutory aggravating factor. As to

cruelty, the court found that the victim remained conscious

while being stabbed thirty-seven times: she attempted to

reach a phone to call for help and responded to paramedics

who treated her at the scene. She also suffered fifteen

defensive stab wounds struggling to protect herself. The

court also found that Hurles inflicted gratuitous violence on
26 HURLES V. RYAN

the victim, establishing that he committed the murder in a

heinous or depraved manner. In addition to the fifteen

defensive wounds, the victim suffered eight stab wounds to

her head and neck, twelve to her torso and two to her legs. Of

the thirty-seven wounds, three could have been fatal; the

victim bled to death. The court concluded that the attack

“had to have been mind-numbing and terrifying and

excruciatingly painful” for the victim and that Hurles

committed the murder in an especially heinous, cruel and

depraved manner.

The trial court also considered the evidence in mitigation. 

The court found that Hurles did not establish statutory factor

(G)(1), A.R.S. § 13-703(G)(1), which concerns diminished

capacity, or the ability to appreciate the wrongfulness of

one’s conduct or to conform one’s conduct to the

requirements of law. While the court found that Hurles is

“borderline mentally retarded” and has a learning disorder, he

still understood the consequences of his actions and attempted

to cover his tracks to evade detection. The trial court

accepted evidence that Hurles had been drinking before the

crime but found it insufficient to establish incapacity due to

intoxication.

The court found that Hurles had proved, by a

preponderance of the evidence, two nonstatutory mitigating

circumstances:

Number one, the defendant had a

deprived childhood and was raised in a

clearly dysfunctional home environment. 

Defendant’s father was abusive to defendant

and to his siblings, molested his daughter, had

sex with his son’s girlfriend. Defendant’s
HURLES V. RYAN 27

brothers were in trouble with the law

frequently throughout defendant’s life and

may have abused alcohol throughout their

lives.

Number two, the defendant had good

behavior while incarcerated prior to the

commission of this crime. While

incarcerated[,] defendant attended available

counseling sessions and performed well in his

work as a cook in the prison kitchen.

The court then noted that it had considered other factors

Hurles had raised in his briefing, including his low

intelligence and lack of education, as well as his inadequate

mental health treatment while incarcerated. The court did not

find those factors mitigating. The trial court concluded that

Hurles had not shown that any of the proven mitigating

circumstances were sufficiently substantial to warrant

leniency and imposed a sentence of death.

Hurles contends that the trial court considered evidence

of his mental deficiencies and intoxication for the limited

purpose of determining whether he suffered from diminished

capacity at the time of the crime. He argues that the trial

court failed, in the final analysis, to consider evidence of his

mental deficiencies and intoxication cumulatively with the

other mitigating evidence. Hurles claims that counsel erred

in failing to raise this issue on appeal.

Counsel did not raise any sentencing issues on appeal,

which the Arizona Supreme Court noted. Hurles, 914 P.2d at

1299. Even so, the state supreme court conducted “a

thorough and independent review of the record and of the
28 HURLES V. RYAN

aggravating and mitigating evidence to determine whether the

sentence [wa]s justified.” Id. (quoting State v. Brewer,

826 P.2d 783, 797 (Ariz. 1992)). The court summarized the

trial court’s findings regarding the mitigating evidence and

stated:

A difficult family background, including

childhood abuse, does not necessarily have

substantial mitigating weight absent a

showing that it significantly affected or

impacted a defendant’s ability to perceive, to

comprehend, or to control his actions. No

such evidence was offered, and the trial judge

did not err in concluding that Hurles’s family

background was not sufficiently mitigating to

require a life sentence.

The judge also found that Hurles had good

behavior while incarcerated prior to

committing the murder. Taken either by itself

or in combination with Hurles’s family

background, we do not believe this

sufficiently mitigates the quality of the

aggravating circumstance. A life sentence

would not be more appropriate.

Id. at 1299–1300 (citation omitted).

The state court denied Hurles’s claim of ineffective

assistance of appellate counsel, which he raised in his first

PCR. The court reasoned that Hurles had not met the

Strickland standard, that the state supreme court

independently reviewed the sentence and that the outcome on
HURLES V. RYAN 29

appeal would not have been different if Hurles had presented

this claim explicitly. First PCR at 3.

We must consider whether this denial of Hurles’s claim

of ineffective assistance of appellate counsel qualifies as

objectively unreasonable. In order for us to grant the petition,

Hurles must show that the state court’s denial of this claim

“was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Richter, 131 S.Ct.

at 786–87. Hurles has not made such a showing. Even if we

presume deficiency, we find prejudice wanting. Strickland,

466 U.S. at 697 (holding a court deciding an IAC claim need

not address both components of the inquiry if the defendant

makes an insufficient showing on one). Hurles has not shown

that, but for appellate counsel’s failure to raise this claim, the

state court would have invalidated his death sentence. Miller,

882 F.2d at 1434.

The Constitution requires a sentencer to consider any and

all mitigation evidence offered by a defendant at trial. 

Lockett, 438 U.S. at 604. This mandate requires the

consideration of nonstatutory mitigating evidence in order to

safeguard individualized decisions that are essential in capital

cases and that give due respect to the uniqueness of the

individual defendant. Id. at 605. Moreover, “[j]ust as the

State may not . . . preclude the sentencer from considering

any mitigating factor, neither may the sentencer refuse to

consider, as a matter of law, any relevant mitigating

evidence.” Eddings, 455 U.S. at 113–14. In considering

mitigating evidence, however, the sentencer “may determine

the weight to be given relevant mitigating evidence.” Id. at

114–15.
30 HURLES V. RYAN

Arizona law in existence at the time of trial required

sentencing courts to consider all mitigating evidence, even if

it did not establish a statutory mitigating factor. State v.

McMurtrey, 664 P.2d 637, 646 (Ariz. 1983) (en banc). In

addition, the Arizona Supreme Court specifically directed

sentencing courts to consider each mitigating circumstance,

whether or not enumerated by statute, both individually and

cumulatively. State v. Gallegos, 870 P.2d 1097, 1118–19

(Ariz. 1994). Also at the time, the Arizona Supreme Court

would conduct a de novo review of the trial court’s rulings

concerning aggravation and mitigation to decide,

independently, whether the death sentence should stand. 

Brewer, 826 P.2d at 790–91.

Had counsel presented a claim to the Arizona Supreme

Court that the trial court failed to consider the cumulative

weight of the mitigating evidence presented, we see no

probability that Hurles would have prevailed. At sentencing,

the trial court stated on the record that it had considered

nonstatutory mitigating circumstances, “including any aspect

of [Hurles’s] character, propensities or record” that might call

for leniency. The court also noted that it had considered

Hurles’s sentencing memorandum, the testimony presented

both at trial and the sentencing hearing and the arguments of

counsel. In addition to Hurles’s deprived upbringing and

good behavior while incarcerated, the trial court noted it had

considered Hurles’s low intelligence, lack of education and

inadequate mental health treatment while incarcerated.

While the mitigating evidence may have moved us to

mercy had we presided over Hurles’s sentencing trial, such a

determination is not appropriate on habeas review. Richter,

131 S.Ct. at 786 (holding a reviewing court must not treat the

unreasonableness question as a test of its confidence in the
HURLES V. RYAN 31

result it would reach under de novo review). Instead, we

must ask whether reason supports the state court’s conclusion

that counsel rendered effective assistance to Hurles, despite

not raising this claim on appeal. We find no error in that

determination. The record makes plain that the trial court did

in fact consider the mitigating evidence offered, as the

Constitution requires. Parker v. Dugger, 498 U.S. 308, 314

(1991) (“We must assume the trial judge considered all this

evidence before passing sentence. For one thing, he said he

did.”). The Arizona Supreme Court’s independent review of

the death sentence imposed here also persuades us that Hurles

did not suffer an error requiring federal habeas intervention. 

Hurles, 914 P.2d at 1299–1300. While AEDPA “stops short

of imposing a complete bar on federal court relitigation of

claims already rejected in state court proceedings . . . [i]t

preserves authority to issue the writ in cases where there is no

possibility fairminded jurists could disagree that the state

court decision conflicts with [the Supreme Court’s]

precedents.” Richter, 131 S.Ct. at 786. Such a conflict does

not exist here. The state court did not err in denying this

claim.

B. Judicial Bias

Hurles contends that Judge Hilliard’s failure to recuse

herself from his trial, sentencing and post-conviction

proceedings denied him due process of law. The state court

came to an unreasonable determination of the facts in denying

this claim. Accordingly, we remand for an evidentiary

hearing.

The Supreme Court held long ago that 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
32 HURLES V. RYAN

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.; cf. Mistretta v. United States,

488 U.S. 361, 407 (1989) (“The legitimacy of the Judicial

Branch ultimately depends on its reputation for impartiality

and nonpartisanship.”). This most basic tenet of our judicial

system helps to ensure both the litigants’ and the public’s

confidence that each case has been adjudicated fairly by a

neutral and detached arbiter.

“The Due Process Clause of the Fourteenth Amendment

establishes a constitutional floor, not a uniform standard,” for

a judicial bias claim. Bracy v. Gramley, 520 U.S. 899, 904

(1997). While most claims of judicial bias are resolved “by

common law, statute, or the professional standards of the

bench and bar,” the “floor established by the Due Process

Clause clearly requires a ‘fair trial in a fair tribunal’ before a

judge with no actual bias against the defendant or interest in

the outcome of his particular case.” Id. at 904–05 (quoting

Withrow v. Larkin, 421 U.S. 35, 46 (1975)). 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.” Withrow, 421 U.S. at 47. Our

inquiry is objective. Caperton v. A.T. Massey Coal Co., 556

U.S. 868, 881 (2009).1 We do not ask whether Judge Hilliard

actually harbored subjective bias. Id. Rather, we ask whether

1 We cite to Caperton, the Supreme Court’s recent decision regarding

judicial bias, throughout this opinion. Caperton is not controlling insofar

as it announces new clearly established Supreme Court precedent that

post-dates the state court decision at issue here, although we do not read

Caperton to announce a new rule of law that affects our analysis. We

refer to Caperton, however, where we find its analysis of previously

established Supreme Court jurisprudence helpful to our resolution of this

matter.
HURLES V. RYAN 33

the average judge in her position was likely to be neutral or

whether there existed an unconstitutional potential for bias. 

Id. “Every procedure which would offer a possible

temptation to the average . . . judge to forget the burden of

proof required to convict the defendant, or which might lead

him not to hold the balance nice, clear and true between the

State and the accused, denies the [accused] due process of

law.” Tumey v. Ohio, 273 U.S. 510, 532 (1927).

Hurles need not prove actual bias to establish a due

process violation, just an intolerable risk of bias. Aetna Life

Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986); see also

Caperton, 556 U.S. at 883 (“[T]he Due Process Clause has

been implemented by objective standards that do not require

proof of actual bias.”) (citing Lavoie, 475 U.S. at 825;

Mayberry v. Pennsylvania, 400 U.S. at 455, 465–66 (1971);

Tumey, 273 U.S. at 532). Thus, we must ask “whether ‘under

a realistic appraisal of psychological tendencies and human

weakness,’ the [judge’s] 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, 556 U.S. at 883–84 (quoting Withrow, 421 U.S. at

47). Due process thus mandates a “stringent rule” that 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” if there exists a “probability of unfairness.” 

Murchison, 349 U.S. at 136. But this risk of unfairness has

no mechanical or static definition. It “cannot be defined with

precision” because “[c]ircumstances and relationships must

be considered.” Id.

For instance, due process requires recusal where the judge

has a direct, personal and substantial pecuniary interest in

convicting a defendant. Tumey, 273 U.S. at 523, 532. Other
34 HURLES V. RYAN

financial interests also may mandate recusal, even if less

direct. Gibson v. Berryhill, 411 U.S. 564, 579 (1973); see

also Ward v. Monroeville, 409 U.S. 57 (1972) (requiring

recusal where village mayor with revenue production role

also sat as a judge and imposed revenue-producing fines on

the defendant); Lavoie, 475 U.S. at 824–25 (requiring recusal

where (1) a justice of the state supreme court cast the

deciding vote and authored an opinion upholding punitive

damages in certain insurances cases and (2) that same justice

was a plaintiff in a pending action involving the same legal

issues from which he obtained a large monetary settlement). 

Non-pecuniaryconflicts “that tempt adjudicators to disregard

neutrality” also offend due process. Caperton, 556 U.S. at

878. A judge must withdraw where she acts as part of the

accusatory process, Murchison, 349 U.S. at 137, “becomes

embroiled in a running, bitter controversy” with one of the

litigants, Mayberry, 400 U.S. at 465, or becomes “so

enmeshed in matters involving [a litigant] as to make it

appropriate for another judge to sit,” Johnson v. Mississippi,

403 U.S. 212, 215–16 (1971).

We now turn our attention to the matter at hand. Having

catalogued the Supreme Court’s clearly established judicial

bias jurisprudence and being mindful of the limitations

AEDPA places on us, we must determine whether the state

court erred in denying Hurles’s judicial bias claim. We focus

our inquiry on Judge Hilliard’s denial of Hurles’s second

PCR, as that five-page minute order is the last reasoned

decision by the state court on the judicial bias claim. Barker

v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005) (citing

Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Avila v.

Galaza, 297 F.3d 911, 918 (9th Cir. 2002)).
HURLES V. RYAN 35

Ordinarily, we cloak the state court’s factual findings in

a presumption of correctness. 28 U.S.C. § 2254(e)(1). 

However, we afford such deference only if the state court’s

fact-finding process survives our intrinsic review pursuant to

AEDPA’s “unreasonable determination” clause. See Taylor,

366 F.3d at 1000. Here, the state court’s fundamentally

flawed fact-finding process, to the extent it constitutes a

process, fails our intrinsic review.

In his second PCR, Hurles alleged judicial bias. He

argued that Judge Hilliard responded to his special action

petition, received contemporaneous copies of each pleading

filed in her name, knew the pleadings were framed in terms

of her personal opposition to his request for relief, did not

object to the tone or content of the pleadings and repeatedly

denigrated defense counsel. Second PCR at 1-3–1-5. Judge

Hilliard then presided over his trial and sentencing, sentenced

him to death, presided over and denied his first PCR and

presided over his second PCR. Second PCR at 1-2. Judge

Hilliard denied Hurles’s judicial bias claim.

Judge Hilliard did not hold an evidentiary hearing or

provide another mechanism for Hurles to develop evidence in

support of his claim, despite her conclusion that Hurles

“offer[ed] no factual evidence to support his allegations.” 

Minute Entry, Aug. 9, 2002, at 2, Hurles v. Schriro, No. CIV00-0118-PHX-RCB (D. Ariz. 2008), ECF 72-1 at 19

(“Minute Entry”). Even worse, she found facts based on her

untested memory of the events, putting material issues of fact

in dispute. Judge Hilliard concluded that she did not

specifically authorize a pleading to be filed on her behalf, did

not provide any input on the responsive brief, that she was a

nominal party only and that she did not have any contact with

the Arizona Attorney General’s Office. In effect, she offered
36 HURLES V. RYAN

testimony in the form of her order denying Hurles’s second

PCR. Minute Entry at 2. Hurles had no opportunity to

contest Judge Hilliard’s version of events that took place

years before. Instead, Judge Hilliard accepted her factual

assertions as true and relied on them to conclude that “a

reasonable and objective person would not find partiality.” 

See Minute Entry, Aug. 9, 2002, at 2, Hurles v. Schriro, No.

CIV-00-0118-PHX-RCB (D. Ariz. 2008), ECF 72-1 at 19

(“Minute Entry”).

Judge Hilliard’s denial of Hurles’s judicial bias claim

rests on an unreasonable determination of the facts. We have

held repeatedly that where a state court makes factual

findings without an evidentiary hearing or other opportunity

for the petitioner to present evidence, “the fact-finding

process itself is deficient” and not entitled to deference. 

Taylor, 366 F.3d at 1001 (“If, for example, a state court

makes evidentiary findings without holding a hearing and

giving petitioner an opportunity to present evidence, such

findings clearlyresult in an unreasonable determination of the

facts.”) (internal quotation marks omitted); see also Perez v.

Rosario, 459 F.3d 943, 950 (9th Cir. 2006) (amended) (“In

many circumstances, a state court’s determination of the facts

without an evidentiary hearing creates a presumption of

unreasonableness.”) (citing Taylor, 366 F.3d at 1000); Nunes

v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (“But with

the state court having refused [the petitioner] an evidentiary

hearing, we need not of course defer to the state court’s

factual findings—if that is indeed how those stated findings

should be characterized—when they were made without such

a hearing.”); cf. Killian v. Poole, 282 F.3d 1204, 1208 (9th

Cir. 2002) (“Having refused [petitioner] an evidentiary

hearing on the matter, the state cannot argue now that the

normal AEDPA deference is owed the factual determinations
HURLES V. RYAN 37

of the [state] courts.”); Weaver v. Thompson, 197 F.3d 359,

363 (9th Cir. 1999) (according no deference where written

statements by trial judge to defense counsel “were not subject

to any of the usual judicial procedures designed to ensure

accuracy”).

This case presents an especially troubling example of

defective fact-finding because the facts Judge Hilliard

“found” involved her own conduct, and she based those

“findings” on her untested memory and understanding of the

events. See Buffalo v. Sunn, 854 F.2d 1158, 1165 (9th Cir.

1988) (finding error when the court relied on “personal

knowledge” to resolve disputed issue of fact); cf. Murchison,

349 U.S. at 138 (“Thus the judge whom due process requires

to be impartial in weighing the evidence presented before

him, called on his own personal knowledge and impression of

what had occurred in the grand jury room and his judgment

was based in part on this impression, the accuracy of which

could not be tested by adequate cross-examination.”).

We cannot conclude, nor could any appellate panel, that

the record supports Judge Hilliard’s factual findings. Id. at

1000. Any appellate court to whom this defect was pointed

out would be unreasonable in holding that Judge Hilliard’s

fact-finding process was adequate. Id. Based on the flaws in

the state court’s fact-finding process, we conclude the state

court decision resulted in an “unreasonable determination of

the facts” and is not entitled to a presumption of correctness. 

See id. at 999 (holding unreasonable determination clause

applies where “the process employed by the state court is

defective”).

Where a habeas petitioner has not failed to develop the

factual basis of his claim in state court as required by
38 HURLES V. RYAN

28 U.S.C. § 2254(e)(2), an evidentiary hearing is required if

(1) the petitioner has shown his entitlement to an evidentiary

hearing pursuant to Townsend v. Sain, 372 U.S. 293, 313

(1963), and (2) the allegations, if true, would entitle him to

relief. Stanley, 598 F.3d at 624. A petitioner who has

previously sought and been denied an evidentiary hearing has

not failed to develop the factual basis of his claim. Id. (citing

28 U.S.C. § 2254(e)(2)); Second PCR at 1-7, 1-15 (seeking

right to litigate judicial bias claim before a trial judge other

than Judge Hilliard). Under Townsend, a federal court must

grant an evidentiary hearing in circumstances present here:

(1) the state courts factual determinations are not fairly

supported by the record as a whole, and (2) the fact-finding

procedure employed by the state court was not adequate to

afford a full and fair hearing. Townsend, 372 U.S. at 313. 

Therefore, Hurles is entitled to an evidentiary hearing if his

allegations, if proved, would entitle him to relief. Stanley,

498 F.3d at 624. They would.

In determining whether Hurles enjoyed “a fair trial in a

fair tribunal,” Bracy, 520 U.S. at 904, we must consider

whether the probability that Judge Hilliard harbored actual

basis against Hurles is too high to be constitutionally

tolerable, Withrow, 421 U.S. at 47. We must ask whether the

average judge, in Judge Hilliard’s position, was likely to sit

as a neutral, unbiased arbiter or whether there existed an

unconstitutional risk of bias. Caperton, 556 U.S. at 881. But

to consider fairly the potential for bias, we must consider the

average reasonable judge in the particular circumstances in

which Judge Hilliard found herself. Murchison, 349 U.S. at

136 (noting that the probability of unfairness “cannot be

defined with precision. Circumstances and relationships must

be considered.”). While Hurles does not face the daunting

task of proving actual bias in order to establish a due process
HURLES V. RYAN 39

violation, Lavoie, 475 U.S. at 825, as the risk of actual bias or

prejudgment goes up, so, too, does the strength of his judicial

bias claim, see Caperton, 556 U.S. at 883–84. Thus, a

likelihood of unfairness would require recusal even if Judge

Hilliard did not actually harbor bias against Hurles. 

Murchison, 349 U.S. at 136.

The tenor of Judge Hilliard’s responsive pleading in the

special action proceeding, by itself, suggest strongly that the

average judge in her position could not later preside over

Hurles’s guilt phase, penalty trial and post-conviction

proceedings while holding “the balance nice, clear and true”

between the state and Hurles. Tumey, 273 U.S. at 532. But

proof that Judge Hilliard participated in the special action

proceedings as more than a nominal party, had contact with

French, commissioned or authorized the responsive pleading

or provided any input on the brief, would help establish that

Judge Hilliard became “so enmeshed in matters involving

[Hurles] as to make it appropriate for another judge to sit,”

Johnson, 403 U.S. at 215–16, or that Judge Hilliard became

“embroiled in a running, bitter controversy” with Hurles and

his counsel, Mayberry, 400 U.S. at 465. See Murchison,

349 U.S. at 137; Johnson, 403 U.S. at 215. Such evidence

certainly would show an unconstitutional risk of actual bias.

Because Hurles’s allegation of judicial bias would, if

proved, entitle him to federal habeas relief, the district court

abused its discretion in denying this claim without an

evidentiary hearing. Stanley, 598 F.3d at 626.

IV. CONCLUSION

For the foregoing reasons, we remand for an evidentiary

hearing on Hurles’s claim of judicial bias, remand for
40 HURLES V. RYAN

consideration of appellate counsel’s failure to raise Hurles’s

Ake claim and otherwise affirm the district court.

AFFIRMED in part; REVERSED in part;

REMANDED.

IKUTA, Circuit Judge, dissenting:

Today the majority offers a new way to evade AEDPA

deference: make an unsupported—and unsupportable—

assertion that the state court’s fact finding process is

“unreasonable” for purposes of § 2254(d)(2).1

1 A reasonable person may wonder why the majority has reissued this

opinion for the third time, almost four years after the case was submitted

on October 7, 2010, particularly when doing so will vacate a prior version

of the opinion which has been the subject of a cert petition pending before

the Supreme Court for nearly a year.

A brief history is in order. After the case was submitted in 2010, the

majority issued its first opinion on July 7, 2011. 650 F.3d 1301 (9th Cir.

2011) (withdrawn). After Arizona filed a petition for rehearing, and the

majority ordered a response, the majority withdrew its opinion and

reissued a revised opinion on January 18, 2013. 706 F.3d 1021 (9th Cir.

2013) (withdrawn). An accompanying order stated that Arizona’s petition

for rehearing and rehearing en banc was moot. Id. at 1027.

On February 1, 2013, Arizona filed a motion asking the court to rule

on its petition for rehearing en banc which had been pending for more than

17 months. Arizona argued that its petition for rehearing was not moot,

because the second version of the opinion made the same mistake as the

first version: both opinions sidestepped AEDPAdeference by holding that

the state trial court made an unreasonable determination of the facts under

28 U.S.C. § 2254(d)(2).
HURLES V. RYAN 41

In this case, the state judge resolved a recusal motion

based on the judge’s own understanding of whether her

impartiality might be questioned. Nothing about that is

unusual: federal courts, including this one, uniformly adopt

this approach. See, e.g., Suever v. Connell, 681 F.3d 1064,

1065 (9th Cir. 2012); see also Miles v. Ryan, 697 F.3d 1090,

1090 (9th Cir. 2012). Yet the majority notes that the state

judge did not hold an evidentiary hearing on the petitioner’s

claim that recusal was appropriate, and concludes that “[a]ny

appellate court to whom this defect was pointed out would be

unreasonable in holding that [the state judge’s] fact-finding

process was adequate.” Maj. op at 37.

While Arizona’s motion was pending before the panel, Hurles filed

a motion to remand his ineffective assistance of counsel claims pursuant

to Martinez v. Ryan, 132 S.Ct. 1309 (2012). Although Hurles’s motion

came a year after Martinez was decided, and was clearly waived (as well

as being meritless, as explained below), the panel stayed the mandate on

March 19, 2013, pending a decision by our en banc panel in Detrich v.

Ryan, 740 F.3d 1237 (9th Cir. 2013). When this opinion was issued in

September 3, 2013, it did not shed any light on Hurles’s Martinez motion. 

But the panel further deferred its ruling on Hurles’s Martinez motion

pending the mandate of this court’s decision in Nguyen v. Curry, 736 F.3d

1287 (9th Cir. 2013), which was finally issued in April 2014.

In fact, the majority failed to address Arizona’s February 2013 motion

for a ruling on its original petition for rehearing until today. Concerned

that its petition for certiorari would become time barred under U.S.

Supreme Court Rule 13(2), Arizona filed a protective petition for

certiorari on June 17, 2013. The Supreme Court first distributed this cert

petition for the conference of September 30, 2013, and has relisted it for

every subsequent conference.

In this third opinion, the majority persists in making the same error

that Arizona targeted in its original petition for review, and by vacating its

second opinion, has further delayed the Supreme Court’s consideration of

this error.
42 HURLES V. RYAN

Of course this conclusion is wrong. Worse, this

conclusion is likely to work mischief by casting doubt on

whether state and federal judges can ever appropriately make

recusal decisions without first holding evidentiary hearings. 

Making this conclusion even more absurd, the absence of an

evidentiary hearing in this case is entirely irrelevant, because

even if all the petitioner’s allegations were true, his due

process rights were not violated.

And not only does the majority make the district court

hold a meaningless evidentiary hearing, but the majority also

requires it to engage in another futile exercise of considering

whether the procedural default of the claim that Hurles’s

appellate counsel was ineffective for failing to raise a

meritless claim under Ake v. Oklahoma, 470 U.S. 68 (1985)

should be excused under Martinez v. Ryan, 132 S.Ct. 1309

(2012). Because even the most superficial review of this

defaulted claim demonstrates that it is facially meritless, the

majority violates our case law and wastes judicial resources

by remanding it for further review.

Because this opinion misreads the law, distorts the record,

and casts off AEDPA deference on the basis of a non-existent

fact-finding flaw, I dissent.

I

A

The facts of Hurles’s crime form the backdrop for the

dispute over whether Hurles needed a second attorney, which

is at the heart of his habeas claim. The Arizona Supreme

Court provided the following description:
HURLES V. RYAN 43

On the afternoon of November 12, 1992,

Hurles went to the Buckeye public library, a

small, house-type building in a residential

neighborhood. The only employee in the

library at the time was Kay Blanton. The last

patron, other than Hurles, left the library just

before 2:40 p.m. Hurles then locked the front

doors to the library and attacked Blanton in

the back room. He stripped off her underwear

and pulled her skirt above her waist in an

unsuccessful attempt to rape her. Using a

paring knife found in the back room of the

library, Hurles mortally wounded Blanton,

stabbing her thirty-seven times and inflicting

blunt force trauma by kicking her to such an

extent he tore her liver. . . .

[Hurles then fled the scene.]

Between 3:00 and 4:00 p.m., Hurles rode

[a borrowed] bicycle to the home of his

nephew, Thomas, in Buckeye and asked

Thomas for a ride to Phoenix. Hurles had

changed his clothes and cleaned himself up

somewhat, and Thomas, who had been asleep

and was unaware of Blanton’s murder, agreed

to drive Hurles to Phoenix. As the two left

the house, Hurles was carrying a bundle of

clothes. During the drive to Phoenix, Thomas

noticed that Hurles had bite marks on his

wrist. When asked about them, Hurles told

Thomas he had been in a fight with a Spanish

man at the library, that he had stabbed the

man with the man’s knife, and that he had
44 HURLES V. RYAN

received the bite marks in the fight. As part

of his insanity defense, however, Hurles later

claimed he had no recollection of anything

that occurred between sitting in the library

and going out the back door.

As theycontinued toward Phoenix, Hurles

had Thomas pull over so he could toss the

bundle of clothes out the car window. 

Thomas left Hurles at a Phoenix bus station,

where he purchased a bus ticket to Las Vegas. 

Thomas returned to Buckeye, where he

ultimately made contact with the police and

told them of Hurles’ destination. Later that

evening, the police intercepted Hurles’ bus on

the way to Las Vegas; Hurles was removed

from the bus, arrested, and returned to

Phoenix.

With Thomas’ help, the police recovered

Hurles’ discarded clothes. Police found blood

on the clothing that matched Blanton’s blood

type, which occurs in one percent of the

population. Police also found blood matching

Blanton’s type on Hurles’ shoes, which he

was still wearing when taken from the bus. 

Four bloody shoeprints at the murder scene

matched the soles of Hurles’ shoes, and

Hurles’ palm print was found on the paring

knife left at the scene. . . .

. . . Blanton would have suffered great

terror as she was stabbed repeatedly by

Hurles. She also must have suffered great
HURLES V. RYAN 45

pain. In addition to the fifteen defensive stab

wounds on her hands, Blanton was stabbed

eight times in the head, twelve times in the

torso, and twice in her lower extremities. She

also suffered blunt trauma consistent with

kicking, which tore her liver.

The barrage of violence inflicted on

Blanton, the fact that she was conscious

throughout the attack, and her struggle to fight

off her attacker all indicate she suffered

terribly and far above the norm of even

first-degree murder, leaving no room to doubt

that this murder was especially cruel.

State v. Hurles, 914 P.2d 1291, 1293–94, 1299 (Ariz. 1996).

B

After Hurles was indicted for this murder, Maricopa

County appointed private defense counsel to represent him. 

Hurles made an ex parte motion for the appointment of a

second counsel to aid in his defense. His argument was

summary, comprising only four and a half pages. In

identifying why he required the appointment of additional

counsel, he made only three brief points: (1) “[i]t is apparent

that this case will involve numerous civilian and law

enforcement witnesses”; (2) “the State will utilize the

services of forensic experts on the issues of identification and

sexual assault”; and (3) “[p]reparation for the possible

penalty phase will [be] in itself a time consuming, complex

process.” To support his arguments on the third point, Hurles

cited to California law, and its presumption that a second

attorney is required in a death penalty case. As later noted by
46 HURLES V. RYAN

the Arizona Court of Appeals, Hurles’s motion for a second

attorney was bare bones, and failed to make “a particularized

showing on the need for second counsel.” Hurles v. Superior

Court (Hurles I), 849 P.2d 1, 4 (Ariz. Ct. App. 1993). The

motion made no mention of possible defenses, did not discuss

the size of the defense’s witness pool for either the guilt or

penalty phase, and did not specify any additional forensic or

other technical information the defense would present on its

own account. In short, it provided no substantial factual basis

upon which the trial court could have concluded that a second

attorney was necessary for Hurles to obtain adequate

representation. Instead, the motion simply asserted that

failure to appoint second counsel would potentially violate

Hurles’s constitutional rights because “[d]efense counsel

needs such co-counsel assistance due to the nature of the case

in order to effectively advise the defendant and ensure the

defendant’s right to the effective assistance of counsel.”

After the state trial court (Judge Hilliard) denied the

request, Hurles filed a petition for special action in the

Arizona Court of Appeals,2raising the same arguments he

presented in his motion. Per Arizona’s rules for special

actions, Hurles named the trial judge, Judge Hilliard, as a

nominal respondent, and the State of Arizona, represented by

the office of the Maricopa County Attorney, as the real party

in interest. See Hurles I, 849 P.2d at 2. In response, the

Arizona Attorney General filed a brief in Judge Hilliard’s

name, in which the Attorney General explained that the

presiding criminal judge of the Maricopa County Superior

2 Under Arizona law, the denial of a motion for appointment of a second

attorney is not immediately appealable, and so a petitioner seeks review

of such a ruling by filing a petition for special action in the Arizona Court

of Appeals. See Hurles I, 849 P.2d at 1 n.1. 
HURLES V. RYAN 47

Court (not Judge Hilliard) had requested a responsive

pleading in the special action. Id. at 2 n.2. Then-current

Arizona precedent held that a judge had the right to appear in

special action proceedings, even though the judge was merely

a nominal party. Fenton v. Howard, 575 P.2d 318, 320 (Ariz.

1978). The state Attorney General responded on Judge

Hilliard’s behalf because Maricopa County, which was

prosecuting Hurles, could not take a position on the selection

of his counsel in the special action proceeding. Hurles I,

849 P.2d at 2.

The responsive brief explained the basis for Judge

Hilliard’s determination that Hurles’s case was

straightforward enough to be handled by one attorney. The

brief reviewed the aspects of the case that were relevant to

making this determination. Rather than describing the facts

of the underlying sexual assault and murder, the brief stated

only that the State had charged Hurles “with the brutal

murder of a librarian in Buckeye, Arizona in November,

1992,” and listed the three charges in the indictment. It stated

that Hurles’s counsel had not yet noticed any defenses,

disclosed the names of witnesses, or requested a competency

examination. It then described the State’s case against

Hurles: “An examination of the State’s evidence illustrates

that its case against Petitioner is very simple and

straightforward, compared to other capital cases, contrary to

Petitioner’s assertions.” The brief noted that Maricopa

County planned to call relatively few witnesses, namely ten

law enforcement agents, the medical examiner, and several

civilians, contrary to Hurles’s claim that a second counsel

was required due to the high number of witnesses and

forensic experts. Further, the brief stated that the county had

expressed its intent to present the following physical

evidence: Hurles’s clothing, which was “stained with blood
48 HURLES V. RYAN

of the same PGM type as the victim’s,” his footprint in the

victim’s blood at the library, and the “fact that books returned

by [Hurles] in the return slot at the library place him at the

scene a[t] the time of the murder.” Thus, the brief focused on

the straightforward nature of the State’s case and the facts in

evidence; it did not discuss the merits or strength of the

State’s case or presume that Hurles was guilty of the murder

with which he was charged.

Turning to Hurles’s legal argument for appointment of a

second attorney, the brief asserted that Hurles’s reliance on

California precedent was misplaced because Arizona had

adopted different rules and procedures. Specifically,

according to the brief, while California law presumed the

necessity of a second attorney in capital cases, Arizona had

no such presumption. Further, in refuting Hurles’s claim that

the need to prepare simultaneously for the guilt and penalty

phases mandated the appointment of a second attorney, the

brief noted that while California required sentencing to begin

within 20 days of the verdict, Arizona gave a capital

defendant 90 days after the verdict to prepare for sentencing,

as well as the option to seek an extension of that time for

good cause. These procedural differences made concurrent

preparation for both phases far less urgent in Arizona than in

its sister state.

In response to Hurles’s argument that appointment of a

second attorney was necessary to “ensure the defendant’s

right to the effective assistance of counsel,” the brief stated

that “if Appointed Counsel believes, because of her caseload,

personal competence, or otherwise, that she is incapable of

rendering ‘competent representation’ of the Petitioner, she is

ethically bound to withdraw from this case,” and asserted that

there were other attorneys who provided contract services for
HURLES V. RYAN 49

Maricopa County who would be able to provide competent

representation.

C

Before addressing the merits of the special action petition,

the Arizona Court of Appeals determined that the case raised

“a significant threshold question of standing” that gave the

court the chance to refine its jurisprudence on “whether—or

under what circumstances—the trial court may properly

respond” to a petition for special action. Hurles I, 849 P.2d

at 1–2. After noting that the real party in interest in the

special action proceeding was the State of Arizona, the court

stated that “the record does not indicate whether Judge

Hilliard, the nominal respondent, actually authorized such a

pleading to be filed.” Id. at 2 n.2. Further, the court stated

that from the Attorney General’s statement at oral argument,

“the pleading was requested by the presiding criminal judge,

not by Judge Hilliard, and there was no contact between

Judge Hilliard and the Attorney General’s office as the

pleading was prepared.” Id.

Turning to the standing issue, the Arizona Court of

Appeals acknowledged that in Fenton v. Howard, 575 P.2d

318 (Ariz. 1978), the Arizona Supreme Court had held that “a

judge does have the right to appear and to be represented in

a special action against him, where the judge is a named

respondent,” 575 P.2d at 320, and that a later appellate

decision, State ex rel. Dean v. City Court of Tucson, 598 P.2d

1008, 1009 (Ariz. Ct. App. 1979), had interpreted Fenton as

establishing “a trial judge’s unequivocal right to respond to

a special action, whatever the nature of the decision the judge

seeks to defend.” Hurles I, 849 P.2d at 3. Notwithstanding

this precedent, after examining cases suggesting a narrower
50 HURLES V. RYAN

reading of Fenton, see, e.g., Dunn v. Superior Court,

722 P.2d 1164, 1166–67 (Ariz. Ct. App. 1989), the Arizona

Court of Appeals held that a judge designated as the nominal

respondent in a special action proceeding may file a brief for

the purpose of defending an administrative policy or practice,

but “that it is improper for a judge to respond merely to

advocate the correctness of an individual ruling in a single

case.” Hurles I, 849 P.2d at 3. Applying its new standing

rule to the case before it, the court noted that because “the

pleading merely argues that the respondent judge ruled

properly on the evidence before her. . . . the trial judge lacked

standing” to file a brief in the special action. Id. at 4.

Turning its attention to the merits of the special action

petition, the Arizona Court of Appeals upheld Judge

Hilliard’s ruling. Because Hurles’s counsel had failed to

make “a particularized showing” of the need for a second

lawyer and did not “submit evidence to the trial court

regarding customary practice in defense of capital cases,” the

court found “no matter that warrants special action

intervention at this time.” Id.

The case proceeded to trial. Hurles did not raise a judicial

bias concern before or after the trial in which the jurors

unanimously found him guilty of premeditated and felony

murder. Nor did he raise such a concern at sentencing, where

under then-current Arizona rules, the trial judge acted alone

in imposing the death penalty. Nor did Hurles’s direct appeal

or first petition for post-conviction relief raise a judicial bias

claim.3

3 Per Arizona Rule of Criminal Procedure 32.4(e), Hurles’s first petition

for post-conviction relief was assigned to Judge Hilliard. The trial court

denied the petition, and the Arizona Supreme Court affirmed. Arizona v.
HURLES V. RYAN 51

D

In January 2000, Hurles filed his first federal habeas

petition in district court and filed an amended petition a few

months later. The district court determined that Hurles had

failed to present two of his claims to state court, and so

Hurles returned to the state court to exhaust these claims. In

January 2001, Hurles filed a motion in the state court

proceedings to recuse Judge Hilliard from further

involvement in his case because he intended to file a second

petition for post-conviction relief that would raise an

appearance-of-bias due process claim based on the special

action proceeding. Hurles’s recusal motion was referred to a

different state trial judge, Judge Ballinger, who ruled that

there was no basis to transfer Hurles’s case to another judge.4

In March 2001, Hurles submitted his second petition for

post-conviction relief, which was assigned to Judge Hilliard

pursuant to Arizona Rule of Criminal Procedure 32.4(e) and

Judge Ballinger’s determination. Judge Hilliard noted the

applicable objective test under Arizona law for recusal,

specifically, “whether a reasonable and objective person

knowing all the facts would harbor doubts concerning the

judge’s impartiality.” In describing the facts of the special

action, Judge Hilliard stated that the Attorney General had no

specific authorization to file a pleading on her behalf in the

Hurles, No. CR-99-0422-PC, Order Denying Petition for Review (Ariz.

Jan 7, 2000).

4

Judge Ballinger construed Hurles’s motion as a motion for change of

judge for cause, which, under Arizona Rule ofCriminal Procedure 10.1(a),

entitles a defendant “to a change of judge if a fair and impartial hearing or

trial cannot be had by reason of the interest or prejudice of the assigned

judge.”
52 HURLES V. RYAN

special action, and that she (Judge Hilliard) had made no

contact with the Attorney General’s office. She further noted

that Hurles had not pointed to any aspects of the trial or the

first petition for post-conviction relief that indicated bias. 

After ruling that the facts did not require her recusal as a

matter of state law and did not amount to a due process

violation, Judge Hilliard rejected Hurles’s bias claim in

August 2002. The Arizona Supreme Court affirmed without

opinion.

While this state court proceeding was ongoing, Hurles’s

federal habeas proceedings were also moving forward slowly. 

In September 2008, the district court denied Hurles’s

amended federal petition on the merits. Hurles timely

appealed.

II

The correct application of AEDPA to this case is

straightforward. The state court determined that Judge

Hilliard’s role in Hurles’s proceedings did not deprive him of

his due process rights. We are tasked with determining

whether that determination was contrary to Supreme Court

precedent for purposes of § 2254(d)(1).5 A state court

decision is “contrary to” clearly established Supreme Court

precedent only if “the state court applies a rule that

5 The state trial court’s decision is the last reasoned decision on this

claim, and therefore the one that we must consider under AEDPA review. 

See Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). Because the court did

not expressly apply the Supreme Court’s decisions considering when a

probability of judicial bias rises to a constitutional level, only the

“contrary to” prong of § 2254(d)(1) is at issue here. See Williams v.

Taylor, 529 U.S. 362, 405–07 (2000) (describing the situations in which

the “contrary to” prong will apply). 
HURLES V. RYAN 53

contradicts the governing law set forth in Supreme Court

cases or if the state court confronts a set of facts materially

indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrives at a result different

from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974

(9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 73

(2003)). For AEDPA purposes, a point of law is not “clearly

established” if a state court can draw a “principled

distinction” between the case before it and the Supreme Court

precedent establishing that rule of law. Murdoch v. Castro,

609 F.3d 983, 991 (9th Cir. 2010) (en banc).

A

Here, a state court could certainly draw a principled

distinction between the situation in this case and those in the

Supreme Court precedents cited by Hurles, and it is actually

quite a stretch to hold these precedents applicable at all. The

Due Process Clause requires recusal when “the probability of

actual bias on the part of the judge or decisionmaker is too

high to be constitutionally tolerable.” Withrow v. Larkin,

421 U.S. 35, 47 (1975). This standard is objective; judges

must recuse themselves in circumstances that “would offer a

possible temptation to the average man as a judge . . . not to

hold the balance nice, clear, and true between the State and

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

(quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Judges

are presumed to adjudicate with “honesty and integrity,”

Withrow, 421 U.S. at 47, however, and the situations in which

this presumption is overcome are rare: “[M]ost matters

relating to judicial disqualification do not rise to a

constitutional level,” Caperton v. A.T. Massey Coal Co.,

556 U.S. 868, 876 (2009) (quoting FTC v. Cement Inst., 333

U.S. 683, 702 (1948)) (internal alteration omitted), and it is
54 HURLES V. RYAN

only in “rare instances” that the Constitution requires recusal. 

See Caperton, 556 U.S. at 890.

“Supreme Court precedent reveals only three

circumstances in which an appearance of bias—as opposed to

evidence of actual bias—necessitates recusal.” Crater v.

Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007). The first arises

where a judge “has a direct, personal, substantial pecuniary

interest in reaching a conclusion against [one of the

litigants],” id. (quoting Tumey, 273 U.S. at 523) (internal

quotation marks omitted), or where a financial connection to

a litigant (such as a massive campaign donation from one

party to the judge) creates a constitutionally intolerable risk

of bias, Caperton, 556 U.S. at 884. The second occurs when

a judge “becomes embroiled in a running, bitter controversy”

with one of the litigants. Id. (quoting Mayberry v.

Pennsylvania, 400 U.S. 455, 465 (1971)) (internal quotation

marks omitted). Finally, due process might require recusal

when a judge “acts as ‘part of the accusatory process.’” 

Crater, 491 F.3d at 1131 (quoting In re Murchison, 349 U.S.

at 137).

Other than those cases in which judges have financial

interests, which are not relevant here, the Supreme Court

cases requiring recusal based on an appearance of bias arise

in the context of criminal contempt proceedings. Caperton,

556 U.S. at 880 (discussing precedent). In Murchison, for

example, the Court held unconstitutional a Michigan practice

in which judges would order witnesses to appear before them,

hold them in contempt, and then preside over their contempt

trials. 349 U.S. at 134. The Court held it unconstitutional for

a judge to preside over a trial in this situation; it amounted to

a “judge-grand jury,” which inappropriately involved the

judge in the “accusatory process.” Id. at 137. In Johnson v.
HURLES V. RYAN 55

Mississippi, 403 U.S. 212 (1971) (per curiam), the Court held

it unconstitutional for a judge to preside over an individual’s

contempt trial, where the individual had been held in

contempt two days after successfully enjoining the judge

from systematically excluding blacks and women from juries. 

Id. at 214. That same year, in Mayberry v. Pennsylvania,

400 U.S. 455 (1971), the Court held that a judge who had

been berated continuously by a litigant before finally holding

him in contempt could not preside over the contempt trial. Id.

at 465 (“No one so cruelly slandered is likely to maintain that

calm detachment necessary for fair adjudication.”); see also

Taylor v. Hayes, 418 U.S. 488, 501–02 (1974) (relationship

between judge and lawyer was such that Due Process Clause

required another judge for lawyer’s contempt trial).

The fact that all these cases arise in the context of

criminal contempt proceedings is instructive because this

highlights the circumstances where “the probability of actual

bias . . . is too high to be constitutionally tolerable,”

Caperton, 556 U.S. at 877 (quoting Withrow, 421 U.S. at 47). 

Specifically, the probability of bias reaches constitutional

proportions when a judge is in a position to first accuse an

individual of wrongdoing and then sit in judgment of whether

any wrong was in fact committed.

B

The state court’s rejection of Hurles’s due process claims

was not contrary to these precedents because Hurles’s

allegations, even if true, do not give rise to any of these

circumstances. According to the majority, Hurles makes four

allegations that, if true, “would show an unconstitutional risk

of actual bias.” Maj. op. at 39. These four allegations are

that Judge Hilliard: (1) “participated in the special action
56 HURLES V. RYAN

proceedings as more than a nominal party”; (2) “had contact

with French”; (3) “commissioned or authorized the

responsive pleading”; or (4) “provided any input on the

brief.” Id. All four of these assertions are essentially the

same; they allege that Judge Hilliard had some (or even

significant) responsibility for the contents of the special

action brief defending her decision to deny Hurles’s motion

for a second attorney.

But even accepting these allegations as true, the concerns

identified by the Supreme Court do not arise. First, this case

does not involve a contempt hearing or any analogous

situation; in the special action proceeding, Judge Hilliard

neither acted as a prosecutor nor sought to advance the

prosecutor’s interest, and thus was not part of the “accusatory

process.” See Crater, 491 F.3d at 1131. The special action

proceeding was ancillary to any determination of guilt or

penalty, and involved an evaluation of the evidence only for

the purpose of determining whether a second attorney was

necessary. As the Arizona Court of Appeals noted, Judge

Hilliard’s pleading “merely argues that the respondent judge

ruled properly on the evidence before her.” Hurles I, 849

P.2d at 4. This sort of pleading is fully consistent with

impartial adjudication.

Second, the record here does not show that Judge Hilliard

was “enmeshed” in matters involving Hurles, or that someone

in her position would likely have a personal animus toward

him. The contents of Judge Hilliard’s brief are unremarkable. 

As described above, the brief explains the reasons Judge

Hilliard denied the motion, namely, that the state’s evidence

was simple and straightforward, Hurles’s counsel had not

indicated an intent to put on a more complex defense, and

what was “required to prepare for trial in this case is exactly
HURLES V. RYAN 57

what is required of defense counsel in any criminal case.” 

The Arizona Court of Appeals agreed with this conclusion.

Indeed, a fair review of the brief provides no support for

the majority’s assertion that the “tenor of Judge Hilliard’s

responsive pleading in the special action proceeding, by itself,

suggest[s] strongly that the average judge in her position

could not later preside over Hurles’s guilt phase, penalty trial

and post-conviction proceedings” in an unbiased fashion. 

Maj. op. at 39 (emphasis added). While the brief made

mildly disparaging remarks regarding Hurles’s counsel

(suggesting that if the counsel did not feel up to the task of

rendering competent representation without court-appointed

co-counsel, she should withdraw), the Supreme Court has

never held that a judge’s sour or ill-tempered remarks alone

create an appearance of bias necessitating recusal. See, e.g.,

Liteky v. United States, 510 U.S. 540, 555–56 (1994)

(“[E]xpressions of impatience, dissatisfaction, annoyance,

and even anger, that are within the bounds of what imperfect

men and women, even after having been confirmed as federal

judges, sometimes display,” does not necessitate recusal

under 28 U.S.C. § 455(a)); see also United States v.

McTiernan, 695 F.3d 882, 892 (9th Cir. 2012) (holding that

the presiding judge’s negative comments toward the

defendant, such as stating that the defendant “is clearly

willing to lie whenever it suits his purpose” did not warrant

recusal); cf. United States v. Wilkerson, 208 F.3d 794, 799

(9th Cir. 2000) (“The dissent erroneously conflates a judge’s

asserted displeasure with ‘assuming the role of prosecutor’”). 

Thus, even if Judge Hilliard had personally penned the

special action brief, Hurles did not suffer a due process

violation.
58 HURLES V. RYAN

In sum, even if we were to review the due process issues

in this case de novo, Hurles would be unable to establish a

due process violation. From this, it follows a fortiori that the

state court’s conclusion was not “contrary to” clearly

established precedent. Thus, the court is not relieved of

AEDPA deference under § 2254(d)(1), and the district court’s

decision should be affirmed.

III

The majority does not engage in this § 2254(d)(1)

analysis. Instead, the majority holds that it is relieved of

AEDPA deference under § 2254(d)(2) because the state trial

court made an unreasonable determination of the facts. But

the majority’s claim that the state court’s fact-finding process

was deficient in some material way is entirely baseless.

A

In considering a challenge to a state court’s finding of

fact, AEDPA requires deference to state court decisions

unless those decisions are “objectivelyunreasonable,” not just

incorrect. Lambert, 393 F.3d at 972; see also Schriro v.

Landrigan, 550 U.S. 465, 473 (2007). In considering this sort

of challenge, “we must more than merely doubt whether the

process operated properly.” Taylor v. Maddox, 366 F.3d 992,

1000 (9th Cir. 2004). “Rather, we must be satisfied that any

appellate court to whom the defect is pointed out would be

unreasonable in holding that the state court’s fact-finding

process was adequate.” Id.

According to the majority, when Judge Hilliard rejected

Hurles’s claim (in his second PCR petition) that she was

biased due to her participation in the special action
HURLES V. RYAN 59

proceeding, Judge Hilliard engaged in objectively

unreasonable fact-finding. Maj. op at 35–36. The majority

claims that Judge Hilliard’s fact-finding process was deficient

because: (1) she relied on her own recollections in

determining that her role in the special action proceeding did

not require her recusal, Maj. op. at 35–36, and (2) she did not

hold an evidentiary hearing to give Hurles an opportunity to

present evidence. Maj. op. at 35. The majority asserts that

any appellate panel would be unreasonable in finding Judge

Hilliard’s fact-finding process adequate. Maj. op. at 37.

B

With all due respect, this reasoning does not pass the

straight face test. We cannot hold that Judge Hilliard was

objectively unreasonable in ruling on this recusal motion

when federal judges, like Arizona judges, routinely rule on

motions to recuse themselves. See 28 U.S.C. § 455(a); Ariz.

Code of Jud. Conduct R. 2.11(A) (2009); see e.g., Miles,

697 F.3d at 1090 (Berzon, J. & Tallman, J.) (stating that

“each judge may decide for himself or herself whether recusal

is appropriate”); Suever, 681 F.3d at 1065 (Nelson, J.)

(determining that she need not recuse herself from case

because of the possibility of class membership). For the same

reason, Judge Hilliard was not objectively unreasonable in

consulting her own recollections; federal judges regularly

determine the relevant facts in making recusal decisions. See,

e.g., Cheney v. U.S. Dist. Ct. for the Dist. of Columbia,

541 U.S. 913, 929 (2004) (Scalia, J.) (explaining his

friendship with then-Vice President Cheney, and deciding not

to recuse himself from a case in which Cheney was a nominal

party); Microsoft Corp. v. United States, 530 U.S. 1301,

1301–02 (2000) (Rehnquist, C.J.) (discussing his son’s

representation of Microsoft in another matter, but deciding
60 HURLES V. RYAN

not to recuse himself because no “well-informed individual

would conclude that an appearance of impropriety exists”);

Perry v. Schwarzenegger, 630 F.3d 909, 912 (9th Cir. 2011)

(Reinhardt, J.) (discussing his relationship with his wife and

her involvement in the matter before him in the course of

concluding that “[p]roponents’ contention that Ishould recuse

myself due to my wife’s opinions is based upon an outmoded

conception of the relationship between spouses.”).

If anything, the fact-finding process Judge Hilliard

engaged in was more careful and reasonable than those

engaged in by judges of this circuit on a regular basis,

because she received a separate opinion from Judge

Ballinger, a different state court judge, who independently

reviewed the record and concluded that there was no

appearance of impropriety requiring recusal. Cf. Sivak v.

Hardison, 658 F.3d 898, 924–25 (9th Cir. 2011) (rejecting a

similar judicial bias claim, and noting with approval that an

independent judge determined that recusal was not

necessary); Miles, 697 F.3d at 1090 (holding that a federal

judge may decide her own recusal and rejecting the argument

that other federal judges should vote on the issue). In light of

Judge Ballinger’s review of the record and determination that

Judge Hilliard’s impartiality could not be reasonably

questioned, it seems impossible to conclude that all jurists

would agree that the state court made an unreasonable

determination of the facts.

C

The majority’s second rationale for holding that it is

relieved of AEDPA deference, that no reasonable jurist could

decide a recusal issue without holding an evidentiary hearing,

is completely untenable and lacks any support in circuit or
HURLES V. RYAN 61

Supreme Court precedent. Until today, judges routinely

decided for themselves whether recusal was appropriate in

cases where their impartiality might be questioned. See, e.g.,

Suever, 681 F.3d at 1065. Evidentiary hearings were neither

required nor typically employed. See, e.g., Miles, 697 F.3d

at 1090. Today’s opinion, however, raises troubling

implications, and casts serious doubt on the permissibility of

this longstanding practice.

This case is a particularly bad springboard for imposing

a new evidentiary hearing requirement. We do not fault a

state court for failing to hold an evidentiary hearing if the

petitioner has not identified any evidence material to the

constitutional claim. See Hibbler v. Benedetti, 693 F.3d

1140, 1148 (9th Cir. 2012) (noting the well-established rule

“that no [evidentiary] hearing is required [i]f the record

refutes the applicant’s factual allegations or otherwise

precludes habeas relief.” (quoting Landrigan, 550 U.S. at

474)) (quotationmarks omitted, second alteration in original). 

Rather, unless an alleged factual error “goes to a material

factual issue that is central to petitioner’s claim,” Taylor,

366 F.3d at 1001, there is no “unreasonable determination of

the facts” to justify relieving a federal court of AEDPA

deference under § 2254(d)(2). Here, as previously explained,

supra Section II, even if an evidentiary hearing proved that

Hurles’s factual allegations were true, and we deemed Judge

Hilliard to be responsible for every word in the special action

brief, Hurles did not suffer any violation of his due process

rights. Under these circumstances, an evidentiary hearing

would have been pointless, and thus the state court was not

unreasonable in declining to hold one. See Hibbler, 693 F.3d

at 1147 (“[a] state court’s decision not to hold an evidentiary

hearing does not render its fact-finding process unreasonable

so long as the state court could have reasonably concluded
62 HURLES V. RYAN

that the evidence already adduced was sufficient to resolve

the factual question.” (citing Earp v. Ornoski, 431 F.3d 1158,

1170 (9th Cir. 2005))).

In short, there was nothing wrong with the state court’s

fact-finding process. This makes the majority’s conclusion

that any appellate panel “would be unreasonable in holding

that Judge Hilliard’s fact-finding process was adequate,” Maj.

op. at 37, not only wrong, but objectively unreasonable. 

There is no rational justification for the majority to hold that

it is relieved of AEDPA deference under § 2254(d)(2).

D

Finally, even if we were relieved of AEDPA deference,

the majority errs in remanding the case to the district court for

an evidentiary hearing. As the majority notes, the court must

find that Hurles’s allegations, if true, would entitle him to

relief. See Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir.

2010). But as previously discussed, there is simply nothing

in the record, even under de novo review, that suggests an

unconstitutional risk of bias. As the Supreme Court recently

reminded us, it is not enough for a federal court to identify an

unreasonable determination of the facts, there must also be a

constitutional violation. See Wilson v. Corcoran, 131 S. Ct.

13, 14 (2010) (“Federal courts may not issue writs of habeas

corpus to state prisoners whose confinement does not violate

federal law”) (per curiam). Here there was neither, and the

remand is erroneous and a waste of judicial resources.

IV

Not content with evading AEDPA review by erroneously

invoking § 2254(d)(2), the majority also improperly invokes
HURLES V. RYAN 63

Martinez to excuse Hurles’s procedural default of his

ineffective-assistance-of-appellate-counsel claims. Maj. op.

at 18–21.

Martinez addressed a situation where a habeas petitioner

raises a procedurally defaulted claim of ineffective assistance

of trial counsel. Under Martinez, a federal court can excuse

the procedural default (and hear the claim) if: (1) the first

place that claim could have been raised was in a state postconviction relief proceeding (termed an “initial-review

collateral proceeding” in Martinez); (2) the post-conviction

relief counsel’s failure to raise that claim constituted

ineffective assistance of counsel under Strickland; and

(3) “the underlying ineffective-assistance-of-trial counsel

claim is a substantial one.” Martinez, 132 S. Ct. at 1318. In

order to show ineffective assistance of counsel under the

Strickland standard, a petitioner must show: (1) that the

counsel’s performance was deficient, because counsel “made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and (2) that this deficient performance was “so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland v. Washington, 466 U.S. 668,

687 (1984). As the Supreme Court has noted, we review

ineffective assistance claims under a “highly deferential”

standard, indulging “a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance.” Id. at 689.

The majority here focuses on Hurles’s claim that his

appellate counsel rendered ineffective assistance by failing to
64 HURLES V. RYAN

raise an Ake claim to the state court.6 Maj. op. at 19–21. This

claim is procedurally defaulted, but Hurles argues that the

court should excuse the default because it was caused by

ineffective assistance of post-conviction counsel. But

contrary to the majority’s conclusion, Hurles did not have

cause to excuse this procedural default for a simple reason: 

There is no colorable claim that Hurles’s appellate counsel

was ineffective under Strickland, and therefore, postconviction relief counsel could not have been ineffective for

failing to bring a meritless ineffective-assistance-of-appellatecounsel claim.

According to Hurles, appellate counsel’s error was the

failure to argue on appeal that the trial court’s denial of

Hurles’s request for a brain scan violated Ake v. Oklahoma,

470 U.S. 68 (1985). But the failure to raise such an Ake claim

to the state appellate court could not be ineffective assistance

of counsel. At trial, Hurles presented an insanity defense. 

Under Arizona’s then applicable M'Naghten test for insanity,

Hurles had to prove by clear and convincing evidence that he

“was suffering from such a mental disease or defect as not to

know the nature and quality of the act or, if [he] did know,

6 Hurles claims ineffective assistance of appellate counsel, even though

such claims are not cognizable under Martinez, which only allowed

petitioners to raise procedurally defaulted claims based on ineffective

assistance of trial counsel. See Martinez, 132 S. Ct. at 1315. Martinez

held that the rule barring procedurally defaulted claims “governs in all but

the limited circumstances” the Supreme Court had carved out in that

opinion, which did not include appellate counsel claims. Id. at 1320. 

Nevertheless, the Ninth Circuit has ignored this limitation, and expanded

Martinezto apply to claims of ineffective assistance of appellate counsel. 

See Nguyen v. Curry, 736 F.3d 1287, 1289 (9th Cir. 2013). Although this

holding is contrary to Supreme Court precedent, it is nevertheless the

settled law of this circuit. Accordingly, a court in our circuit must

consider Hurles’s claims of ineffective assistance of appellate counsel. 
HURLES V. RYAN 65

that [he] did not know that what he was doing was wrong.” 

Ariz. Rev. Stat. § 13–502(A) (1993). The state trial court

provided Hurles with a psychiatric expert to assist in his

insanity defense, as required by Ake, and denied only

Hurles’s request for a brain scan to confirm the expert’s

diagnosis that Hurles had organic brain damage. When the

brain scan was subsequently performed for the sentencing

hearing, it showed only “subtle nonspecific abnormalities . . . 

associated with mild processing difficulty” that were

consistent with “attention deficit disorder.”7

Under these circumstances, it would be reasonable for

appellate counsel to decide not to raise an Ake claim. First,

such a claim would be contrary to Ninth Circuit precedent. 

“By its own terms, Ake ‘limited the right it recognized’ to the

‘provision of one competent psychiatrist.’” Leavitt v. Arave,

646 F.3d 605, 610 (9th Cir. 2011) (quoting Ake, 470 U.S. at

79) (internal alterations omitted). We have explained that

“the defendant lacks the right to appointment of a second

psychiatrist even where the first psychiatrist is alleged to be

incompetent or reaches a diagnosis unfavorable to the

defense.” Id. (internal quotation marks and citations

omitted). Indeed, we have stated that “Ake’s limitation to a

single, independent psychiatrist is critical given that

[p]sychiatry is not . . . an exact science, and psychiatrists

disagree widely and frequently . . . on the appropriate

diagnosis.” Id. (internal quotation marks omitted); see also

7

Indeed, the test results were so unhelpful that Hurles’s attorney at

sentencing ignored them for mitigation purposes. Even though the trial

court must consider any relevant mitigating factor, Eddings v. Oklahoma,

455 U.S. 104, 112 (1982), sentencing counsel preferred to focus on a

theory that Hurles’ brain damage was not the sort that showed up in brain

scans. 
66 HURLES V. RYAN

Pawlyk v. Wood, 248 F.3d 815, 823 (9th Cir. 2001) (“[A]

state is required to ensure to a defendant only the provision of

one competent psychiatrist” (internal quotation marks

omitted)); Harris v. Vasquez, 949 F.2d 1497, 1516–18 (9th

Cir. 1990) (same). The majority suggests that appellate

counsel could have distinguished these and other cases, Maj.

op. at 19–20, but even were this possible, the decision not to

raise such a claim falls well within the “exercise of

reasonable professional judgment,” Strickland, 466 U.S. at

690, given the weight of case law counseling against raising

an Ake claim when the trial court denied funds for a second

psychiatric expert.

Further, even if appellate counsel had a colorable legal

basis to claim there was an Ake error at trial, the record

established that any such error was harmless beyond a

reasonable doubt. Appellate counsel would have known that

the brain scan prepared for Hurles’s sentencing hearing

showed only that Hurles’ suffered from a “subtle and

nonspecific abnormality” consistent with attention deficient

disorder. Such evidence would not have helped Hurles prove

by clear and convincing evidence that his mental disease was

so severe that he did not “know the nature and quality of the

act” or “that what he was doing was wrong.” Ariz. Rev. Stat.

§ 13–502(A) (1993). To the contrary, the results of the brain

scan would have entirely undercut Hurles’s insanity defense,

which was based on expert testimony that Hurles experienced

a psychotic episode at the time of the crime due to an

unspecified brain injury. Cf. Vickers, 144 F.3d at 616

(rejecting an Ake claim when an adverse finding would have

“seriously undercut” the defense).

In sum, appellate counsel could reasonably decide not to

bring a claim of a trial-level Ake error because such a claim
HURLES V. RYAN 67

would have no support in the law, and any error would have

been harmless. Accordingly, the failure to bring such a claim

could not be ineffective assistance of appellate counsel under

Strickland. And because there was no viable ineffectiveassistance-of-appellate-counsel claim based on the alleged

Ake error, post-conviction counsel could not be ineffective for

failing to raise it.

As a result, the majority doubly errs in remanding

Hurles’s defaulted claim that appellate counsel rendered

ineffective assistance of counsel. Hurles could excuse the

procedural default only if post-conviction counsel was

ineffective for failing to raise this claim. But under a proper

application of the deferential Strickland standard, the

ineffective-assistance-of-appellate-counsel claim is meritless,

and therefore post-conviction counsel could not be ineffective

for failing to raise it. Where “there is little doubt about the

correct answer” to the petitioner’s defaulted claims, the

appellate panel should “decide [the] issue in the first instance

rather than remand to the district court.” Detrich v. Ryan,

740 F.3d 1237, 1248 (9th Cir. 2013) (en banc) (plurality

opinion). By failing to apply Strickland’s deferential

standard correctly (or at all), the majority ignored “the correct

answer,” id., and accordingly erred in excusing Hurles’s

default.

V

The Supreme Court has harshly criticized our noncompliance with AEDPA deference.8 Here the majority

8

See, e.g., Cavazos v. Smith, 132 S. Ct. 2, 7 (2011) (per curiam)

(“Doubts about whether Smith is in fact guilty are understandable. But it

is not the job of this Court, and was not that of the Ninth Circuit, to decide
68 HURLES V. RYAN

repeats the same mistake corrected by the Supreme Court in

Harrington v. Richter, 131 S. Ct. 770 (2011), now under the

guise of a § 2254(d)(2) analysis instead of § 2254(d)(1)

review. As in Harrington, the majority used its de novo

conclusion that Hurles suffered a due process violation as a

springboard for its § 2254(d)(2) ruling. In effect, the majority

holds that the state court’s factual determination was

unreasonable because the court failed to acknowledge that its

whether the State’s theorywas correct. The jury decided that question, and

its decision is supported by the record.”); Cullen v. Pinholster, 131 S. Ct.

1388, 1410–11 (2011); Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011)

(per curiam) (stating that our decision that the state court’s determination

was an unreasonable determination of the facts was “as inexplicable as it

is unexplained”); Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per

curiam); Harrington v. Richter, 131 S. Ct. 770, 785 (2011); Premo v.

Moore, 131 S. Ct. 733, 740 (2011); Rice v. Collins, 546 U.S. 333, 342

(2006) (“The panel majority’s attempt to use a set of debatable inferences

to set aside the conclusion reached by the state court does not satisfy

AEDPA’s requirementsfor granting a writ of habeas corpus.”); Schriro v.

Smith, 546 U.S. 6, 8 (2005) (per curiam) (“[T]he Court of Appeals

exceeded its limited authority on habeas review . . . .”); Middleton v.

McNeil, 541 U.S. 433, 437 (2004) (per curiam) (“[The Ninth Circuit’s]

conclusion failed to give appropriate deference to the state court’s

decision.”); Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (per curiam);

Woodford v. Visciotti, 537 U.S. 19, 20 (2002) (per curiam) (reversing

Ninth Circuit’s grant of habeas relief because it “exceed[ed] the limits

imposed on federal habeas review by 28 U.S.C. § 2254(d)”); Early v.

Packer, 537 U.S. 3, 10 (2002) (per curiam) (admonishing the Ninth

Circuit for “repeatedly and erroneously substitut[ing]” the phrase “‘failed

to apply’ clearly established Supreme Court law” for “the more

demanding requirement of § 2254(d)(1): that the decision be ‘contrary to’

clearly established Supreme Court law” (emphases added)); see generally

Hon. Diarmuid F. O’Scannlain, A Decade of Reversal: The NinthCircuit’s

Record in the Supreme Court Through October Term 2010, 87 Notre

Dame L. Rev. 2165, 2168–76 (2012). 
HURLES V. RYAN 69

participation in the special action proceeding had violated

Hurles’s due process rights. Harrington corrected a similar

error: “The Court of Appeals appears to have treated the

unreasonableness question as a test of its confidence in the

result it would reach under de novo review,” and because the

court “had little doubt that [defendant’s constitutional] claim

had merit, the Court of Appeals concluded the state court

must have been unreasonable in rejecting it.” Harrington,

131 S. Ct. at 786. Equally applicable is Harrington’s

criticism of the Ninth Circuit for “overlook[ing] arguments

that would otherwise justify the state court’s result.” Id. As

in Harrington, the majority here failed to weigh the evidence

in the record that made the state court’s fact-finding process

and factual conclusions reasonable, relying instead on an

unprecedented view that judges must hold evidentiary

hearings on recusal motions. Finally, as Harrington stated,

“[i]t bears repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. The majority clearly lost sight of this

rule, because there is no basis for its holding that the state

court’s fact-finding was either substantively or procedurally

unreasonable. And even if Hurles’s factual allegations were

true, they do not form the basis of a due process claim,

making remand for an evidentiary hearing wholly

inappropriate. Turner v. Calderon, 281 F.3d 851, 890 (9th

Cir. 2002).

Our responsibility here is clear: under the strictures of

AEDPA and Supreme Court precedent, we are bound to

uphold the state court’s denial of Hurles’s due process claim,

which is neither contrary to Supreme Court precedent nor

based on an unreasonable determination of the facts. Because

the majority’s decision invalidates a lawfully imposed capital

sentence, further frays the (increasingly threadbare) fabric of
70 HURLES V. RYAN

our AEDPA jurisprudence, and lays the groundwork for other

frivolous habeas challenges to trial judges’ impartiality, I

dissent.