F OR P UBLICATION



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

R I C H A R D D. H U R

L E S , Petitioner-Appellant

,

v.

C H A R L E S L

. R Y

A N *

, Respondent-Appellee

. No. 08-99032

D.C. No. 2:00-cv-0118-RCB

ORDER AND OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Robert C. B roomfield, Senior District J udg e, Presiding

Arg ued and Submitted O ctober 7, 2010—Pasadena, California

F iled May

16, 2014

B efore: Harry

Preg erson, Dorothy

W . Nelson, and Sandra S. I kuta, Circuit J udg es.

O pinion by

J udg e D.W

. Nelson; Dissent by

J udg e I k uta

* Ch arles L

. Ry a n is su

b stitu ted f o r h i s pred ecesso r, Do ra B

. Sch riro

, as Directo r f

o r t h e A rizo n a Dep artm en t o f Co rrectio n s. F ed

. R. A pp

. P

. 4 3 (c)(2 ).H U R L E S V

. R Y

A N 2

SUMMARY * *

Habeas Corpus/Death P e nalty

The panel withdre w its opinion filed J anuary 18, 2013; filed a new opinion affirming in part and deny

ing in part the district court’s denial o f a 28 U.S.C. § 2254 habeas corpus p e t ition challeng ing a capital murder conviction a nd dea t h sentence; denied the warden’s motion for ruli n g on her F ebruary 1, 2013, petition for rehearing en banc; allowed the parties t o f

ile a p etition for rehearing a n d rehearing en banc with respect to the n ew opin ion; and g ranted in part a nd denied in part the petitioner’s motion to remand.

The petitioner, an Ariz ona state prisoner, moved to remand for reconsideration of procedural default in lig ht o f Martinez v. R

yan , 132 S.Ct. 1 309 (2012). The panel g ranted
t h e motion as to appellate counsel’s failure to c halleng e the trial court’s denial of neurolog ical testing

, but otherwise denied the motion.

The panel held that the state court reasonably denied the petitioner’s claims that sentencing counsel f ailed to e x plain how the petitioner’ s mental illness and d eficiencies affected his conduct at the time of the crime, d e p r i v i n g him of the effective assistance of counsel.

The panel held that the state court reasonably denied the
p e t i t ioner’s claim that appellate counsel was ineffective b y

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

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

th e read er.H U R L E S V

. R Y

A N 3

not challeng ing the trial court’s failure to weig h mitig at ing evidence cumulatively

.

T h e p a nel held that the state court came to a n

unr e asonable determination of the facts in deny ing the petitioner’s claim tha t t h e trial judg e’s failure to recuse herself denied the petitioner due process of la w

. The panel remanded for an evidentiary hearing on the claim of judicial bias.

Dissenting

, J ud ge I kuta wrote that the majority offers a

new w ay to e vade AEDPA deference: make an u n supported

– a nd unsupportable – a ssertion 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 A a r o n Harwin, Tucson, Ariz ona, for Petitioner-Appellant.

Terry Goddard, A ttorney G eneral, Kent E. Cattani a nd J .D. Nielsen, Office of the Ariz ona Attorney General, Capital L itig atio n Section, Phoenix

, Ariz ona, for RespondentAppellee.H U R L E S V

. R Y

A N 4

ORDER

The opinion filed J anuary 18, 2013, and app e a r ing at 706 F .3d 1021, is withdrawn, Carver v. Lehman

, 558 F .3d 869, 878–79 (9th Cir. 2 009), and is replaced by the opinion filed concurrently with this order. Our p r ior opinion may not be cited as p recede n t t o any court. The parties may file a petition for rehearing a

nd rehearing en ba n c with respect to the opinion filed tog ether with this order.

IT IS SO ORDERED.

OP INION

D.W . NEL SON, Senior Circuit J udg e:

Petitioner Richard D. H urles a ppeals the district cou r t ’s denial of his federal hab e a s p etition challeng ing his conviction for capital murder and the imposition of his death

s entence. Hurles arg ues that the district court erred i n deny ing his c laims of judicial bias and ineffective assistance of sentencing and appellate counsel, and i n f i nding v arious claims procedurally defaulted. W e remand for an evidentiary hearing on Hurles’s c l ai m of judicial bias. W e also g rant in part H u r l es’s motion for a remand pursuant to Martinez v

. Ryan
, 132 S.Ct. 1309 (2012), and r emand for consideration o f appellate counsel’s failure to challeng e the trial court’s denial of neurolog ical testing

. W e otherwise affirm the district court and deny Hurles’s motion.H U R L E S V

. R Y

A N 5

I. Background

Hurles, on parole after serving nearly fifteen y ears for prior crimes, went to the library in B uckey e, Ariz ona o n a November afternoon in 1992. State v. H urles

, 914 P.2d 1291, 1293 (1996) (en b anc). He attacked librarian Kay B lanton b y attempting to rape h er a n d t h e n stabbing her thirty -seven times. Id. Hurles left th e library

, c leaned himself up, discarded his bloody clothes and fled on a bus to L as Veg as, Nevada. I

d. at 1294. The state charg ed H urles with b urg lary

, first-deg ree murder, first-deg r ee f elony murder and attempted

sex ual assault. Id. at 1293.

The court appoint e d an attorney to represent Hurles, an indig ent. That a ttorney moved for t h e appointment of cocounsel when the State decided to s e e k the d eath penalty

. Defense c ounsel cited numerous reasons n e cessitating coc o u nsel, among them, the many witnesses, the State’s intention to utiliz e forensic ex perts, the need to mai ntain a productive client relationship a nd the d e n se and detailed preparation necessary for both phases of trial. The trial court summarily

denied the motion.

D efense counsel broug ht a p etition for special action i n the Ariz ona Court o f Appeals. The petition challeng e d the denial of the motion t o appoint c o-counsel as violating Hurles’ s rig hts to due process, equal protection and the adequate assistance of counsel. The real party in interest, the State of Ariz ona, declined to respond to the petition because it lacked standing to do so. Hurles v. Superior Court
, 849 P.2d 1, 2 (Ariz

. Ct. A pp. 1993). However, the petition named the tria l j u dg e, Ruth Hilliard, as the respondent, as r equired by A riz ona law. Ariz

. R. P

. S pecial Actions 2(a). This nominal desig n ation “ is a mere formality ,” and the trial judg eH U R L E S V

. R Y

A N 6

“has no interest in the litig ation and s h o u ld have n o interest in the w ay t h e c a se is decided.” State ex rel. Dean v. City Court
, 598 P.2d 1008, 1 000–11 (Ariz

. Ct. A pp. 1979). Nonetheless, J udg e Hilliard filed a responsive ple a d ing

, months before the presentation of a ny evidence in the c a se ag ainst Hurles, that defended her ruling below.

I n her r esponse, J u d g e Hilliard described the murder a s “brutal.” She noted that d efense counsel had not noticed any defenses, had not disclosed the names of trial witnesses, h ad
not requested an ex amination of Hurles and that i t w a s not known whether Hurles would present a mental health ex pert at trial. J udg e Hilliard n evertheless described the state’s case ag ainst H urles as “very simple and straig htforward, compared
to o ther capital cases” and predicted that it would n ot involve

an inordinate a mount o f witness testimony . She arg ued that the denial of second counsel was r ational l y related to the state’s du ty to preserve its resources, noting that Hurles h ad f a i led to show that his case was “any more complex o r difficult to prepare than almost any other criminal case.” J udg e Hilliard referenced the rules o f professional conduct and stated that if defense counsel believed that she could not render competent representation, she w as bound to withdraw and, quite possibly

, to withdraw h e r n ame from the list o f attorney s who contracted wi t h the c ounty to serve a s appointed counsel. J udg e H illiard concluded, “ Clearly there

are o ther attorney s who p rovide contract services for Ma r i c o pa County who would be able to provide competent representation in a case as simple as this.”

The Ariz ona C o u r t of Appeals published a decision deny ing J udg e Hilliard s t anding to appear in the special action and r

uling i t improper f

or judg es to file pleading s in special actions solely to ad vocate the correctness of anH U R L E S V

. R Y

A N 7

i n d ividual ruling in a sing le case. Hurles

, 849 P.2d at 3

– 5

. The court no ted that the presiding criminal judg e , n ot J udg e Hilliard, requested the filing of a responsive pleading and that there was no contact between J udg e Hilliard and the A riz o na Attorney G eneral’s office as the pleading was prepared. I d.
at 2
, n.2. However, Colleen F rench, of the Ariz ona Attorney General’s Office, r e presented J udg e Hilliard in the special action proceeding and later admitted to ha v i ng h ad some communication with J udg e Hilliard a b out this matter. I n opposing a motio n to disqualify the Ariz ona Attorney General’s Office from repre s e n t ing the state, F rench referenced her “communications with [J udg e Hilliard] during the special action proceeding s” b ut d id not d e s c r ibe their
nature of co n t e n t

. T h e record is ambig u ous as to the nature and ex tent of those communicati ons.

Addressing J udg e H illiard’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 ex plained that “at every lev e l of the judiciary

, judg es are presumed to recog niz e tha t t h e y m ust 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. T h e court stated that “[ t] his principle, which is essential to impartial adjudication, does not chang e from direct appeal to special action, merely because the judg e is a no minal respondent in the latter.” Id. The c ourt then held that J udg e Hilliard lacked standing to file a r e sponsive pleading and declined to c onsider the pleading filed in her

name. I d.

J udg e Hilliard c ontinued to preside over Hurles’s trial. A jury found H urles gu i l ty of all charg es. J udg e Hilliard then conducted an ag g ravation and mit i g a t i o n hearing to determineH U R L E S V

. R Y

A N 8

the app r opriate sentence for Hurles. Ariz ona’s capital

s e n t encing scheme provided a t the time of trial that J u d ge Hilliard, sitting alone, would determine the presence o r ab s e n c e o f the ag g ravating factors required by state law for the i m p o s i tion of the death penalty

. Ring v. Arizona
, 536 U.S. 5 84, 588 (2002). T h e Supreme Court has since h eld that capital defendants are entitled to a jury determination o f
any fact t hat would support the imposition o f a death
sentence. I

d. at 589. At t he a g g ravation and mitig ation hearing

, Hur l es offered substantial mitig ating evidence, in c l uding his markedly dy sfunctional family backg round,
cog nitive deficiencies, long -te r m substance abuse, mental illness, g oo d b e havior while incarcerated and a n ex pert opinion that Hurles suffered diminished capacity at the time of the crime.

F ollowing the presentation of penalt y p hase evidence, J udg e H illiard found one statutory ag g ravating facto r : t hat Hurles c ommitted the crime in a n especi a l l y cruel, heinous and depraved manner. She found two n onstatutory mitig ating circumstances: that Hurles suffered a d e prived childhood in

a clearly dy sfunctional home and that he behaved w e ll in prison prior to the underly ing crime. She c o n cluded that these circumstances did not w arrant leniency and condemned Hurles to die. The Ariz ona Supreme Court affirmed Hurles’s conviction a

nd sentence o n appeal. Hurles

, 9 1 4 P.2d at 1300.

Hurles filed his first petitio n f o r post-conviction r eview (“PCR”) in 19 99. J udg e Hilliard p resided over this PCR. F rench, the same attorney who represented J udg e Hilliard in the pr i o r s p ecial a ction p r oceeding

, represented the state. J udg e Hilliard denied the PCR, an d the Ariz ona Supreme Court summarily

affirmed.H U R L E S V

. R Y

A N 9

Hurles commenced fede ra l habeas proceeding s in 2000. He then retu r ned to state court to file a second PCR r aising

a d d itional c laims, including one of judicial bias. Hur l e s moved to r ecuse J udg e Hilliard from presiding over his second PCR. T he motion was referred to another judg e a nd denied. J udg e Hilliard then denied Hurles’s second PCR, a nd the Ariz ona Supreme Court summarily affirmed.

Hurles returned to federal court and filed an amended habeas petition, raising ten c laims. The district court denied
most o f them a s procedurally barred. After a dditional briefing

, the d istrict court d enied the re m ainder of Hurles’s claims on the mer i ts and c ertified f our issues f

or appeal to this Court.

II. Jurisdiction and Standard of Review

W e have jurisdiction pursuant to 28 U.S. C. § 2253. W e review de n ovo the district court’s denial of Hurles’s habeas petition, and we r eview the district court’s finding s of f act for clear error. B rown v

. Ornoski

, 503 F .3d 1006, 1010 (9th Cir. 2007). W e review for abuse of d i scretion the determination that a petitioner is not entitled to an evidentiary hearing

. Stanley v. Schriro

, 598 F .3d 6 1 2
, 6 1 7 (9th Cir. 2010). B ecause Hurles fi l e d his federal habeas petition after 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) g overns this case

. L i ndh v

. Murphy

, 5 21 U.S. 320, 336 (1997).

AEDPA places lim i t a t i o ns on a federal court’s power to g rant a state prisoner’s federal habeas petitio n

. Cullen v

. Pinholster

, 131 S.Ct. 1388, 1398 (2011). W hen a state court has adjudicated a claim o n t h e merits, we may g rant relief

o nly if the adjudication of that claim “(1) resulted i n aH U R L E S V

. R Y

A N 10

d e c i sion that was contrary to, or involved an unreasonabl e application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in

a decision that was b a sed o n an unreasonable determination

o f the facts in lig ht of the e vidence presented in the st a t e court proceeding .” 28 U.S.C. § 2254(d). To determi ne the rel e v a nt clearly established f ederal law, we look to the holding s, but not the dicta, of the Supreme Court at the time the state cou rt a d

j udicated the claim on the merits. Terry W illiams v. Taylor

, 529 U.S. 362, 412 ( 2000). I n considering whether the state court unr e a s onably applied clearly established federal la w , we are limited to the record before the state c ourt that adjudicated t h e c laim on the merits. Pinholster , 131 S.Ct. at 1398).

An unreasonable application of federal law results where the “the state court identifies the correct g overning leg al rule from [ Supreme Court] c a ses but unreasonably applies it to the facts of the particular state prisoner’s c ase,” or if it “ either unreasonably ex tends a leg al principle from [ Supreme Court]
p recedent to a new contex t where it should not apply o r unreasonably refuses to ex tend that principle to a new c ontex t where it should apply .” W i l l i a m s , 529 U.S. at 407; see also Panetti v. Quarterman
, 551 U. S

. 9 3 0, 953 (holding that AEDPA does not require habeas courts to await “some nearly identical factual pattern” before apply ing a clearly e stablished rule, nor does it prohibit “ finding an application of a principle unreasonable wh e n it involves a set of facts different from those of the c a s e i n which the principle was announced”) (internal quotation marks and citations omitted). W e cannot g rant relief unless the state court came to a decision that was objectively unreasonable. W illiams

, 529 U.S. at 410.H U R L E S V

. R Y

A N 11

W e cannot find that the state court made an unreasonable determination of the f

a ct s in this case simply because we would reverse in similar circumstances if this c a se came before us on direct appeal. Taylor v. Maddox

, 366 F

. 3d 992, 1000 (9th Cir. 2004). I nstead, w e must be “convinced that an appellate panel, apply i n g the n ormal standards of appellate review, c ould not reasonab l y conclude that the f inding is supported b y the record” b e f ore the st a t e c o u rt. Id. T o find the state court’s fact findin g p r o c ess defective in a material
way , o r, per h a p s , completely lacking

, “we must more than merely doubt whether the process operated properly

. Rather,

we must be satisfied that any a p p e l l a te court to w hom the d e f e c t is p ointed out would be u nreasonable in holding that the state court’s fact-finding process was adequate.” I d.

I f we determine, considering only the evidence before the
state c ourt, that the adjudication of a claim on the merits resulted in a decision c o n t rary to or involving an unreasonable application of clearly established federal law, o r that the state court’s decision was based on an unreasonable determination of the facts, we evaluate the claim de novo, a nd

we may consider evidence properly present e d for the first time in federal court. Pinholster , 131 S.Ct. at 1401.

III. Discussion

A. Inef f ective Assistance of

Counsel

Hurles broug ht various claims of ineffective assistance o f counsel (“I AC”) in his federal habeas petition, all of which the d istrict court either dismissed as procedurally defaulted o r denied on the merits.H U R L E S V

. R Y

A N 12

To bring a successful I AC claim, Hurles m u st show counsel’s deficient performance and prejudice. Strickland v

. W ashing t o n , 466 U.S. 668, 6 87 (1984). Deficient performance requires a showing t h at trial counsel’s representation fell below a n o bjective standard o f

r e a s o n a b l e ness as measured by prevailing professiona l n o r m s

. W i g g i n s v. Smith

, 539 U.S. 510, 521 (2003). “ A cour t considering a claim of ineffective assistance must a p p l y a ‘s t r o n g p r e sumption’ that counsel’s representation was within the ‘wide ra n ge’ of r easonable professional assistance.” Harrington v. Richter

, 131 S.C t

. 770, 7 87 (2011) (quoting Strickland

, 466 U.S. at 689). H u r l e s bears the burden o f showing “that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ g u a r anteed the defendant by the Six th Amendment.” Strickland

, 466 U.S. at 687. T o establish prejudice, Hurles must show a re a sonable probability that “but for c ounsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 6 9 4. “A reasonable probability is a probability sufficient to undermine c onfidence in the outcome.” Id. “I t is not enoug h ‘to show that the errors h ad some co n c e i vable effect on the
outcome of the proceeding .’ Counsel’s er r ors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Richt e r , 131 S.Ct. at 787–88 (quoting Strickland , 466 U.S. at 693, 687).

“The standards created by Strickland and [ AEDPA ] a re both hig hly deferential, a n d w hen the two apply in tandem, review is doubly so.” Richte r , 1 3 1 S

. Ct. at 788 (internal quotation m a r k s and citations o mitted). I n considering the
state co urt’s denial o f Hurles’s I AC claims, “[ t] he pivotal question is w hether th e state court’s application of the Strickland standard w as u n r e a s o nable.” Id. at 785. W e do not ask, in the first instance, whether counsel’s performanceH U R L E S V

. R Y

A N 13

f e l l below Strickland ’s standard because “‘an unreasonabl e application of federa l l a w is d ifferent from a n incorrect application of federal law.’” Id. (quoting W illiams

, 529 U.S.
at 410). W e must “ g ua r d a gainst the dang er of equating unreasonableness under Strickland w ith unreasonableness

u n d e r [AEDPA]

. . . . The question is whether there i s a n y reasonable arg ument that counsel sati s fied Strickland ’s deferential standard.” Id. at 788. W e are mindfu l that a “state court’s determination that a c laim lacks merit precludes federal h abeas relief so long as ‘fairminded jur i s t s could disag ree’ on the correctness of the state court’s decision.” Id.
at 7 86 (quoting Y

arborough v. A l varado

, 541 U.S. 652, 664 (2004)).

1. P rocedurally Def

aulted IAC Claim s

The warden contends that Hurles p r o cedurally defaulted five of hi s I A C c l aims. Hurles moves to remand for reconsideration of procedural d efault in lig ht of Mart inez v

. Ryan
, 132 S.Ct. 1309 (2012). W e g rant the motion as to appellate counsel’s failure to challeng e the trial court’s denial of neurolog ical testing

, and we remand on t h a t b asis. W e otherwise deny

Hurles’s motion.

The relevant claims include trial counsel’s f ailure to loca t e a key g uilt phase witness and appellate counsel’s f ailure to raise (1) the denial of a request for neurolog ic al testing

, (2) the consideration of improper victim statements, (3) that, g e nerally

, Ariz ona’ death p enalty s tatute fails to

narrow the class of d eath-elig ible d efendants and (4) that, specifically

, Ariz ona’s F (6) statutory a g g ravating factor f ails to narrow the class of death-elig ible defendants.H U R L E S V

. R Y

A N 14

Hurles procedurally defaulted these claims when h e failed
to raise them before the Ariz o na Supreme Court. See Zichko

v. Idaho

, 2 47 F .3d 1015, 1021–22 ( 9th Cir. 2001) (“A h abeas petitioner must present his claims to the hig hest state court in order to satisfy the ex haustion requirement of [ A EDPA ] .”). “[ T] he procedural default r ule barring consideration of a federal claim ‘ applies

. . . if it is clear that th e s t a te 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)). I f Hurles
pr e s e n ted these I AC claims to the Ariz ona Supreme Court
now, the court would dismiss them as w aived. Ariz

. R. Crim. P. 32.2 (waiver with narrow ex ceptions not applicable here). Thus, Hurles’s failure to present these claims to the sta t e supreme court “‘in a timely fashion has resulted in a procedural default of those claims.’” Zic h k o , 2 4 7 F .3d at 1022 (quoting O’Sullivan v. Boerckel

, 526 U.S. 838, 848 (1999)); see also Coleman v. Thompso n , 501 U.S. 722, 732 (1991), o verruled on other grounds by Martinez v. Ryan
, 132 S.Ct. 1 309, 1315 (2012) (holding p e t i t ioner “defaulted his fed e r a l c laims in state c ourt,” so, met “technical

re quirements for ex haustion” b ecause “no state remedies [ were] available to him”) ( internal quotation marks a nd citations omitted).

F or the procedural default rule to apply , “the application of the state procedural rule must provide an a d eq u ate a nd independent state law basis on which the state court can deny relief.” Bennett v. M

ueller

, 322 F .3d 573, 580 (9th Cir. 2 003) (amended) ( i n ternal quotation marks and citations omitted). Ariz ona’s waiver r

ules a re independent and adequat e bases for deny ing relief. Stewart v. Smith

, 536 U.S. 856, 859–60 (2002) (per curiam) (hold i n g denials pursuant to A riz o na waiver rules are independent of federal law); Ortiz v. Stewart
,H U R L E S V

. R Y

A N 15

1 4 9 F .3d 923, 931–32 (9th Cir. 1998) (finding Ariz o n a waiver rule consistently

and reg u larly applied).

Now that we have found “an indep e n d e nt and adequate
state procedural g round, ‘ f ederal habeas review is barred

u n l ess [ Hurles] can demonstrate cause for the procedural default and a ctual prejudice, o r [ can] demonstrate that the failure to c onsider the claims will result in a fundamental miscarriag e of justice.’” Bennett
, 3 22 F .3d at 580 (quoting Noltie v. Peterson , 9 F .3d 802, 804–05 (9th Cir. 1993)).

I n our amended o pinion filed on J a nuar y 1 8
, 2013, we affirmed the d istrict court’s holding of procedural default a s to these c l aims. After we filed our amended opinion, however, H urles moved to remand pursuant to Martinez v

. Ryan
, 132 S.Ct. 1309, an intervening Supre me Court decision. Martinez held that “ [ i] na d e q uate assistance o f counsel at initial-review collateral proceeding s may establish

cause for a prisoner’s procedural default o f a c l aim o f ineffective assistance of c ounsel at trial.” 132 S.Ct. at 1315. I n h is motion to remand, Hurles arg ues that this very circumstance ex ists here: The i n effectiveness of counsel at his post-conviction proceeding s caused Hurles to default substantial claims o f ineffective assistanc e of trial a nd appellate counsel. Thus, he arg ues, the Martinez ex ception to procedural d efault applies, and we should remand for f urther proceed i n gs as to that issue. W e took that motion under submission pending the r esolution of Detrich v. Ryan
, — F .3d —, 2013 W L 4712729, (9th Cir. Sep. 3, 2013) (en banc).

I n Detrich

, the d i s t r i c t c ourt held several of the petition e r ’s claims of ineffective assistance of trial counsel procedurally d efaulted because, like Hurles, D etrich failed to raise those claims during his initial state post-convict i onH U R L E S V

. R Y

A N 16

r e l i e f proceeding s. Id. at *1. Sitting e n banc, we reman d e d
to the distr ict court pursuant to Martinez to determine whether cause ex isted t o ex cuse post-conviction counsel’s procedural default. Id

. a t * 9

. Detrich confirmed that a remand is appropriate w here po s t

- c o n v i c t i on counsel’s failure to raise a claim of ineffective assistance of trial counsel may have c aused the p rocedural default of that claim. I t did not speak, however, to the q u es t ion h ere, which is whether remand is appropriate where the defaulted claim alleg e s the ineffective assistance of appellate counsel.

Nonetheless, we recently decided Nguyen v. Curry
,

— F .3d —, 2013 W L 6246285 (9th Cir. D ec. 4, 2013), which addresses this very question. I n Nguyen
, we held that

“ Martinez applies to t h e failure to raise not only a claim o f trial-counsel I AC, but also a claim of appellate-counsel I AC.” I d

. at * 1 (emphasis added).” The Nguyen Court t h u s remanded for “the d istrict court to dete r m i n e i n the first instance whether [ the petitioner’s] procedural default should be ex cused under Martinez .” Id.

To establish cause for the procedural default of a n I AC claim, Hurles must show that post-conviction counse l w a s ineffective pursuant to Strickland v

. W ashington

, 466 U.S. 668 (1984), i n not r aising a particular claim. Martinez
, 132 S.Ct. at 1 3 1 8

. Specifically

, Hurles must demonstrate counsel’s performa n ce was deficient and that this deficient performance prejudiced the defense. Strickland

, 4 66 U.S. at 687. H urles also must show that the underly ing I AC claim is “substantial,” meaning that it “has some merit.” Martinez
, 132 S.Ct. a t 1 318. We discuss each claim in turn to consider whether Hurles has established cause to ex cuse the default o f his I AC claims.H U R L E S V

. R Y

A N 17

F irst, H urles claims that trial counsel failed to conduct an adequate g uilt phase investig ation. Trial co u n sel never disputed that Hurles c aused the victim’s death b ut arg u ed that H u rles was M’Naughton insane at the time of the cr i m e. Ariz . Rev. Stat. 1 3-502(A) (1993) (“A person may be f ound
g uilty ex cept insane if at the time of the commissio n o f t h e criminal act the p erson was afflicted with a mental disease o r defect of such severity that the p erson did not know the criminal act was w r o n g. ”); see also Clark v. Arizona
, 548 U.S. 735, 7 48–56 (2006) (upholding as constitutional the 1993 a mendments to Ariz ona’s insanity law in ef f e c t a t the time of Hurles’s trial).

To e stablish this defense, trial counsel presented ex pert testimony that Hurles was in a psy chotic state of mind at the time of the murder due to brain damag e, and so did not know what h e was doing or that it was wrong

. Hurles also alleg es, however, that hours before the murder, he had consensual sex with a woman who was not the victim. T rial counsel did not identify , locate or question this woman.

Certainly

, we have held that counsel must conduct an adequate investig ation to p r e p are a mental health defense in

a capital case. See, e.g.
, Bloom v. Calderon , 132 F .3d 1267, 12 7 7–78 ( 9th Cir. 1997). Adequate c ounsel w ould have tracked down this w itness, as she was the last person to have intimate o r substantial contact with H urles close in time to the crime. Conceivably

, she could have provided crucial insig ht into his beha v i o r and mental state just hours before the murder, w hich would relate to his insanity defense at the g u ilt phase. This testimony also mig h t have proved helpful at the

s entencing p hase of trial. See Ariz

. Rev. Stat. § 1 3 -7 0 3 (G)(1) ( 1991) (listing as a mitig ating factor “[ t] he defendant’s capacity to appreciate the w rongf u l n ess of his conduct or toH U R L E S V

. R Y

A N 18

conform his condu c t t o the requirements of law was sig nificantly impaired, but not so impaired as to constitute a defense t o prosecution.”). Counsel’s failure to investig ate and locate this witness appears d eficient. See, e

. g

. , S ilva v

. W oodford

, 279 F .3d 825, 842 ( 9 th Cir. 2002) (“[ A] n attorney ’s failure to investig a te, during either the g uilt phase

or the sentencing phase o f a c a p ital trial, can amount to constitutionally

deficient performance.”).

Thoug h counsel’s performan c e likely proved deficient, Hurles has not established prejudice. To do so, Hurles must show a reasonable probability that but for counsel’s failure to t r a ck down the witness, the result o f the g uilt phase would have b een different. S

ee Strickland

, 466 U. S

. a t 694. “A reasonable p robability is a probability sufficient to undermine confidence in the outcome.” Id. Fe deral post-conviction counsel soug ht and obtained funding for an investig ator to locate this witness. There is nothing in the record to sug g e st that she has been found, and we can only speculate as to the nature of her testimony and whether it would have h elped o r undermined Hurles’s insanity defense. Thus, Hurles’s “claim of prejudic e a mounts to mere speculation,” Cooks v

. Spalding

, 6 60 F .2d 738, 7 40 (9 t h C i r

. 1981), and h e has not established cause to ex cuse the pr o ce dural default of this claim.

Additionally

, Hurles makes several claims of ineffective

as s i s t an ce o f appellate counsel. The first is that appellate counsel failed to challeng e the trial court’s denial of Hurles’s request for neur o l og ical testing to support his insanity defense—his only defense at trial. Hurles cont e n d s that the denial of funds violated h is due process rig hts pursuant to Ake v. Oklahoma , 470 U.S. 68 (1985).H U R L E S V

. R Y

A N 19

Hurles r etained Dr. Marc. S. W alter as an ex pert a t trial. Dr. W alter o pined that based on a neuropsy cholog ical ex am, Hurles suffered fro m phy siolog ical brain damag e a nd recommended a Computer-assisted T opog raphic Mapping (“CTM”) test to substantiate his opinion. The state’s ex pert, psy chiatrist Dr. Alex a n d er Don, ag reed that to verify brain imp a i rment, Hurles w ould need to underg o “some objective neurolog ical investig ation, like a CTM scan.”

Trial c ounsel re q u e s ted funds for a CTM e x amination. The trial c o u r t denied this request. At trial, the p rosecutor

cross-ex amined D r. Walter, aski n g w hat tests would verify brain damag e and whet h er those tests had been conducted. Dr. W a lter t es t i f

ied that the relevant tests that would show brain damag e had not been c o n d u c t e d. The state’s ex pert then testified that “there would need to be further studies” to confirm brain damag e and that “if [ a] practition er suspects brain injury

, then it oug h t to b e abl e to be demonstrated objectively on testing .” After the g u i lt phase ended but before the sentencing hearing

, the trial court approved funds for a brain scan. Dr. Drake Duane conducted t h e C M T and found an “abnormality in the left frontal r eg ion” that is associated with “processing difficulty .”

I n Ake

, the Supreme Court held that “when a State bring s its judicial power to bear on a n indig ent defendant in a criminal proceeding

, it must ta k e s t eps to assure that the defendant has a fair opportunity to present his d e fense.” 470 U.S. a t 7 6. The Court held that “when a defendant demonstrates to the trial j u dg e that his sanity at the time o f the o ffense is to be a sig nificant factor at trial, the State must,
at a minimum
, assure t h e defendant a ccess to a competent psy chiatrist who will conduct a n appropriate ex amination a nd assist in the evaluation, preparation, a nd presentat i on o f theH U R L E S V

. R Y

A N 20

defense.” Id. at 8 3. H urles’s sanity was not just a sig nificant factor at trial—it was his entire defense at the g u i l t p h ase. This case is not like Vickers v. Stewart
, where the p etitioner
soug h t out-of-state testing that would have taken several weeks where nearly “every

. . . ex pert who provided evidence in the c ase[ ] ag reed that n o amount of testing c ould establish whether [ the petitioner] h ad in fact suffered a s e i z u r e at the time of the offense”—the k e y t o e stablishing the insanity defense. 1 4 4 F .3d 613, 615–16 (9th Cir. 1998). Nor did Hurles seek the appointment of a third p sy chiatrist as did the petitioner in Leavitt v. A rave , 646 F .3d 605, 610 (9th Cir. 2011).

Here, the sole defense at g u ilt was insanity

, and Hurles’s

ex p ert offered testimony in support of that defense. The state offered a contrary opinion, resulting in a battle of the ex p erts. B oth e x perts ag r eed that objective testing could show brain damag e, but the trial court denied f unding for this test until after the g uilt phase c oncluded. The state used the absence o f such an objective test to its advantag e, tipping the s cales o f the battle of the ex perts in its favor.

Appellate counsel’s failure to raise this claim on appeal

was deficient. Appellate counsel “unreason a b l y failed to discover nonfrivolous issues” to appeal, and Hurles’s Ake claim was “clearly strong er than those presented” on appeal. Smith v

. R obbins

, 528 U .S. 259, 285, 288 (2000 ) (internal quotation marks omitted). Hurles also can show p rejudice from this e rror, as the brain scan c o nducted after trial showed brain d amag e. Th e Supreme Court held in Martinez that “[ a ] l l o wing a federal habeas court to hear a claim o f ineffective a s s i stance o f [ appellate] counsel when an attorney ’s errors

. . . caused a procedural default in an intialreview collateral procee d i n g acknowledg es, as an equitableH U R L E S V

. R Y

A N 21

matter, that the ini t i al-review c o llateral proceeding

, if undertaken

. . .with ineffective c o u n s el, may not have been sufficient to ensure that p roper considerati o n w as g iven to a

s u b stantial claim.” Martinez
, 132 S.Ct. at 1318. W e f i n d

cause sufficient to ex cuse the procedural default of Hurles’s Ake claim and remand.

Hurles a l s o c ontends that appellate counsel performed inadequately by failing to chal l e n ge the trial court’s consideration of improper victim impact evidence. The trial
court considered the presenten ce report, which included a stat ement from the victim’s husband that the “death penalty is the only viable option” and that the “death penalty will not chang e thing s but the punishment f its the crime.” The report also included the homicide d etective’s opinion that the “death penalty is the appropriate sentence.” The victim’s family also made live statements b efore the trial cou r t. The victim’s husband stated that “the only sentence that’s commensurate with the crime

. . . is the death pena l t y

. ” T h e victim’s daug hter acknowledg ed that the court c o u l d n o t inflict on Hurles “the amount of violence and horrendous way that [her]

mom died” but that the court could make sure no o ther family had to g o throug h what h e r s had. Hurles ar g ues that this evidence violated his E ig h th Amendment r ig h t s pursuant to B o o t h v

. Maryland

, 482 U.S. 496 (1987) and P ayne v. Tennessee , 501 U.S. 808 (1991).

Hurles has not demonst r a t e d that he was denied the adequate assistance of counsel on appeal. W e have held that

even where victim impact statements “‘serve no other
purpose than to inflame the jury and d ivert it f r o m d ec iding the case on the relevant e v i d e nce concerning the crime a nd
t he d efendant,’” that worry falls away when a judg e, r ather than a jury

, sentences a defendant to death. Rhoades v

.H U R L E S V

. R Y

A N 22

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

, 482 U.S. at 508); see a lso Gulbrandson v. Ry a n , 7 3 8 F .3d 967, 996 (9th Cir. 2013) (“[ C] o urts must assume that the trial judg e properly applied the law and considered only t he evidence he knew to be admissible.”) (internal quotat i o n marks and citation omi t t e d ); State v. Roscoe
, 910 P.2d 635, 653 (Ariz

. 1996) (holding evidence focusing o n the impact o f a capital crime on the victim’s family is relevant).

F inally

, we see no r eason to remand Hurles’s claims that appellate c o u nsel failed to raise constitutional challeng es to Ariz ona’s death penalty statute. Hurles a rg ues that the statute g enerally fails to narrow the class of defendants subject to the death penalty

, as does t h e “e specially cruel, heinous o r depraved” a g g ravating factor included in th e statute. The di s t r ict court found these claims unex hausted a nd procedurally defaulted but addre s s e d them on the merits
any way and denied them in a reasoned d e c i s i on. B e cause a court has reviewed Hurles’s claims ch a lleng ing the constitutionality

of Ariz o na’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 t o e x cuse the procedural default in a federal h a b eas proceeding

, no court will r eview the prisoner’s claims”). W e r e m a n d f o r c o n s i d e r a t i o n b y the district c ourt in the first instance Hurles’s claim that appellate c ounsel failed to r aise 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 judg ment on the remanded claim.H U R L E S V

. R Y

A N 23

2. Sentencing Counsel

Hurles claims tha t s entencing counsel failed to e x plain how Hurles’s mental ill n e s s and deficiencies affected his

con d uct at the time o f the c rime, depriving him of the effective assistance of counsel. The state court re a s o n ably denied this claim.

As discussed, to b ring a successful I AC claim, Hurles
must show deficiency and p rejudice. Strickland

, 466 U.S. at 687.

Hurles contends that trial counsel failed to draw a causal

nex us between his mental health problems and his conduct at the time of the c r ime, thus, the mental health evidence presented at sentencing proved worthless. State v. W allace

, 773 P.2d 9 83 (Ariz

. 1989) (en ban c ) (“A difficult family backg round is a relevant mitig ating circumsta n ce if a defendant can show that something in that backg round had an effect or impact o n hi s b ehavior that was bey ond the defendant’s control.”); see a lso Stat e v

. Greene
, 9 67 P.2d 106, 117 (Ariz

. 1998) (en banc) ( “Th i s court has held that family b a ckg round may b e a substantial mitig ating circumstance when it is shown to have some connection with the d e fendant’s offense-related conduct.”) (internal quotation marks and citations omitted).

Counse l d id not perform deficiently

. F irst, Supreme Court precedent ex isting at the time of trial d i d not require showing a causal nex u s between mitig ating evidence and the cri m e

. I n fact, the Supreme Court had held that “the
sentencer in capital cases must be permitt e d to c onsider a ny relevant mitig ating factor.” Eddings v. Oklahoma , 455 U.S. 104, 112 (1982) (emphasis ad d e d) ( ex plaining Lockett v

.H U R L E S V

. R Y

A N 24

Ohio

, 438 U.S. 586 ( 1 9 7 8 ) (plurality )); see also Lockett

, 438 U.S. a t 604 (“[ T] he E ig hth and F ourteenth Amendments require that the sentencer

. . . not be pre c l u d e d from

co n sidering

, a s a mitigating factor

, any a spect of a defendant’s character or record a nd any of the circumstances of the offense that th e d e f endant proffers as a basis for a

sen t e n c e less than death.”). T herefore, counsel did not perform below the objective s t a ndard of care when she did
not e s t a b lish a causal n ex u s between Hurles’s mental conditions and the crime.

Moreover, counsel conducted a rather thorough p enalty phase invest i g ation and presented voluminous mitig ating evidence. She called four witnesses to testify to Hurles ’s dy sfunctional family backg r ound, m e n t al and psy cholog ical di sabilities and g ood behavior while incarcerated before the underly ing crime. She commissioned a detailed social history that catalog ued Hurles’s maladjusted family circumstances and deprived life, and that c ontained affidavit s f r o m family members and others who knew Hurles. I n her briefing before the trial court, defense counsel hig hlig hted Hurles’s intox ication a t the time of the crim e

. Trial counsel also adeptly cross-ex amined the state’s psychiatrist.

On this record, we cannot say that counsel’s efforts fell short of what the Constitution requires. P orter v. McCollum

, 130 S.Ct. 447, 453 ( 2009) ( f i n d i ng counsel’s failure to investig ate and p resent mitig a t ing evidence, which did not reflect reasonable p rofessional judg m e nt, deficient a nd prejudicial); Rompilla v. B eard

, 545 U.S. 374, 390 (2005) (finding deficient and prejudicial counsels’ f ailure to ex amine
court file relating to petitioner’s p r ior conviction); W i ggins
, 539 U.S. a t 532, 538 (g ranting petition where counsel conducted unreasonably insufficient mitig ation investig ationH U R L E S V

. R Y

A N 25

that f ell short of p revailing p rofessional standards); see also W ong v. Belmontes

, 13 0 S .Ct. 383, 3 85 (2009) (per curiam) (deny ing I AC claim where counsel “understood the g ravity o f th[ e] ag g ravating evidence” and “built his mitig ation strateg y around the overriding nee d to e x clude it). The state court reasonably

denied this claim.

3. Appellate Counsel

Hurles alleg es t h a t a p pellate counsel denied him the effective assistance o f cou n s e l by not challeng ing the trial court’s failure to weig h the mitig a ting evidence cumulatively

. The state court reasonably denied this claim.

A c riminal defendant enjoy s the rig ht to the effective assistance of counsel o n appeal. Evitts v. Lucey
, 469 U.S. 387, 3 91–97 (1985). W e consider c l aims o f ineffective

a s s istance of appellate counsel according to the standard set forth in Strickland

, 466 U.S. 668. Miller v. Keeney
, 882 F .2d 1428, 1433

– 3 4 ( 9 t h Cir. 1989). Hurles must show that appellate counsel’s representation fe l l below an objective standard of reasonableness, and that, but for counsel’s e rrors,

a reasonable p robability ex i s t s that h e would have prevailed on appeal. Id. at 1434.

The trial judg e found bey ond a reaso n a b l e d o ubt that Hurles c ommitted the crime in an e s p e cially heinous, cruel and depraved ma nner, a statutory ag g ravating factor. As to cruelty

, the court found that the victim remained conscious while being stab b e d t hirty -seven times: she attempted to reach a phone to call for h elp and responded to paramedics who treated her at the s c ene. She also suffered fifteen defensive stab wounds strug g ling to protect herself. The
court also fo u n d that Hurles inflicted g ratuitous violence onH U R L E S V

. R Y

A N 26

the victim, establishing that he committed the murder in a heinous or d e p r a v e d manner. I n a ddition to the fifteen d e fensive wounds, the victim suffered e ig ht stab w ounds t o her head and n eck, twelve to her torso and two to her leg s. Of the thirty

- seven wounds, three could have been f atal; the victim bled to death. The court concluded that the a t tack

“ h ad to have been mind-numbing and terrify ing a n d

ex c r uciating ly painful” f

o r the victim and that Hurles committed t he murder in an e specially heinous, cruel a nd depraved manner.

The trial court also considered the evidence in mitig ation. The court found that Hurles did not establish statutory factor (G)(1), A.R.S. § 13-703( G ) (1), which c oncerns d iminished capacity

, or the ability to appreciate the wr o n gf ulness o f one’s conduct o r t o conform one’s conduct to the requirements of law. W hile the court f ou n d t h a t Hurles is “borderline mentally retarded” and has a learning disorder, he

s t i l l u nderstood the consequences of his actions and attempted
to cover his tracks to evade d etection. T h e trial court accepted evidence that Hurles had b ee n d rinking before the crime but found it insufficient to establish incapacity due to intox ication.

The court found t h a t H urles had proved, by a preponderance of the evidence, t w o n o nstatutory mitig ating circumstances:

Numb er one, the d efendant had a deprived childhood and was raised in a clearly dy sfun c tional h ome environment. Defendant’s father was a busive to defendant and to his sibling s, molested h is d aug hter, h ad

sex with his son’s g irl friend. Defendant’sH U R L E S V

. R Y

A N 27

brothers were in trouble with the law frequently throug hout defendant’s li fe a nd
may have abused alcohol thr o u g hout their lives.

Number two, the defendant had g ood behavio r while incarcerated prior to the

c o m m i s s i o n o f t h i s c r i m e

. W h i l e incarcerated[ ,] d efendant 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 f actors Hurles h a d r aised in h is b riefing

, including his low intellig ence and lack o f e d u c ation, a s well as his inadequate mental health treatment while incarcerated. The court did not find those factors m i t i ga ting

. T h e trial c ourt concluded that Hurles had not shown that any of the pro v e n mitig ating circumstances were sufficiently substantial to warrant leniency and imposed a sentence of death.

Hurles contends that the trial court c onsidered e vidence of his mental deficiencies and i ntox ication for the limited
purpose of determining whether he suffered from d iminished capacity at the t i me of the crime. He arg ues that the trial court failed, in the final analy sis, to consider evidence of his mental deficiencies and intox ication cumulatively with the
ot h e r mitig a ting evidence. Hurles claims that counsel erred in failing to raise this issue on appeal.

Counsel did not raise a n y s e n tencing issues o n appeal, which the Ariz ona Supreme Court noted. Hurles

, 914 P.2d at 1299. Ev e n s o , the state supreme court conducted “a thoroug h and independent rev i ew of the record a nd of theH U R L E S V

. R Y

A N 28

ag g r avating and m itig ating evidence to determine whether the
sentence [ wa] s justif

i e d.” Id. (quoting State v. Brewer
, 826 P.2d 783, 797 (Ariz . 1992)). The court summariz ed the
tr ial court’s finding s reg arding the mitig ating evidence a nd stated:

A difficult family backg rou n d, including childhood ab u s e , does not necessarily have substantial mitig ating w eig ht absent a showing th a t it sig nificantly affected o r impacted a defendant’s ability to perceive, to comprehend

, o r to control his actions. No such evidence was offered, and the trial judg e did not err in concluding that Hurles’s family backg round was not sufficiently mitig ating to require a life sentence.

The judg e also found that Hurles had g ood b e h a v i o r w h i l e i n c a r c e r a t e d p r i o r t o committing the murder. Taken e ither by itself

or in combination with Hurles’s family b a c k gr o u n d

, w e d o n ot b e l i e v e t h i s sufficiently mitig a tes the quality of the
ag g ra v ating circumstance. A life sentence would not be more appropriate.

Id. at 1299–1300 (citation omitted).

The state court d e nied Hurles’s claim of ineffective assistance of appellate counsel, which h e r a i sed in his first PCR. The c ourt reasoned that Hurles ha d not met the S t r i c k l a nd standard, that the s t a t e s u p r e m e co u r t independently reviewed the sentence a nd that the outcome onH U R L E S V

. R Y

A N 29

appeal would not have been different if Hurles had presented this claim ex plicitly . F irst PCR at 3.

W e must consider whether this d enial of Hurles’s claim of ineffective assistance of appellate c ounsel qualifies a s objectively unreasonable. I n order for us to g r ant the petition, Hurles must show that the state court’s denial o f this claim “was so lacking in justification that there was an error w ell understood and comprehended in e x isting law bey ond any possibility for fairminded disag reement.” Richter

, 131 S.Ct.
at 786–87. Hurles h as not made such a showing

. Even if we pres u m e d eficiency

, we f ind prejudice w anting

. Strickland

, 466 U.S. a t 697 (holding a court deciding an I A C claim need
not address both components o f the inquiry if the defenda n t makes an insufficient showing on o ne). Hurles has not shown that, but for appellate counsel’s f a ilure to raise this claim, the
state court would have invalidated his death sentence. Miller

, 882 F .2d at 1434.

The Constitution r equires a sentencer to consider any a nd all mitig ation evidence offered by a defendant at trial. Lockett

, 4 38 U.S. at 6 04. This mandate requ i r e s t he consideration of nonstatutory mitig ating evidence in order to safeg uard individualiz ed decisions that are essential in capital

cases and that g ive due r espect to the uniqueness of the individual d efendant. Id. at 605. Moreover, “[ j] ust as the State may not

. . . p r e c l u de the sentencer from considering
any mitig ating factor, neither m a y t h e sentencer refuse to consider, as a matter of law

, any rele v a n t mitig ating evidence.” Eddi n gs , 455 U.S. at 113–14. I n considering mitig ating evidence, h owever, the sentencer “may determine the weig ht to be g iven relevant mitig ating evidence.” Id. at 114–15.H U R L E S V

. R Y

A N 30

Ariz ona law in ex istence at t h e t i m e of trial r equired sentencing c ourts to c onsider all mitig ating evidence, e ven if it did not establish a statutory mitig ating factor. State v

. McMurtrey
, 664 P.2d 637, 6 46 (Ariz

. 1983) (en b anc )

. I n addition, the Ariz ona Su p reme Court specifically directed sentencing c ourts to c o n sider e ach mitig ating circumstance, whether or not enum erated by statute, both individually a nd cumula t i v e l y

. State v. G allegos

, 870 P.2d 1097, 1118–19 (Ariz

. 1994). Also at the time, the Ariz ona Supr e m e Court would cond u c t a de novo review of the trial court’s ruling s

c o n c e r n i n g a ggr a v a t i o n a n d m i t i g a t i o n t o d e ci d e, indepen dently

, w hether the death sentence should stand. Brewer , 826 P.2d at 790–91.

Had counsel present e d a c laim to the Ariz ona Supreme Co urt that the trial court failed to consider the c umulative weig ht of the mitig a ting e vidence presented, w e see no probability that Hurles w ould have prevailed. A t sentencing

, the trial c ourt stated o n the record that it had considered nonstatutory mitig a ting circumstances, “ including any aspect of [ Hurles’s] c haracter, propensities o r record” that mig ht c all for leniency

. The court also noted t h a t i t had considered Hurles’s sentencing memorandum, the testimony presented both at trial and the sentencing hearing a nd the arg uments o f counsel. I n addition to Hurles’s deprived u p b ring ing a nd
g ood b ehavior while incarcerated, the trial court noted it h ad considered Hurles’ s l o w intellig ence, lack of education a nd inadequate mental health treatment while incarcerated.

W h i l e the mitig ating evidence may have moved us to mercy had we presided over Hurles’s sentencing trial, such a determination is not a

ppropriate on habeas review. Richter

, 131 S.Ct. at 786 ( holding a reviewing court must not treat the unreasonableness question as a t e s t of its confidence in theH U R L E S V

. R Y

A N 31

result it would reach under de novo review). I n stead, we must ask whether reason supports the state court’s conclusion that counsel rendered effective assistance t o Hurles, despite
not raising this claim on ap p e a l

. W e f ind no error in that determination. The record makes p lain that the trial court did in fact consider the mitig a ting evidence offered, as the Constitution r equires. Parker v. Dugger , 498 U.S. 308, 314 (1991) (“W e must a s s ume the trial judg e considered all this evidence before passing sentence. F o r o ne thing

, he said he did.”). The A riz ona Supreme Court’s independent review o f 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. W hile AEDPA “stops short of imposing a complete bar on federal court relitig ation o f claims already reject e d i n s tate court proceeding s

. . . [ i] t preserves a

uthority to issue the writ in cases where there is no possibility fairminded jurists could disag ree that the state court deci s i o n conflicts with [ the Supreme Court’s] precedents.” Richter

, 131 S.Ct. at 786. Such a conflict does
not ex ist here. The state court did not e r r in deny ing this claim.

B. Judicial Bias

Hurles c ontends t h a t J udg e Hilliard’s failure to recuse herself from his trial, sentencing a nd pos t -conviction proceeding s denied him due process of law. T he state court

came to an unreasonable determination of the facts in deny ing this clai m. According ly

, w e remand for an evidentiary hearing

.

The Supreme Court held long a g o that a “fair trial in a fair tribunal is a basic requirement of due process.” I n re Murchison

, 3 49 U.S. 133, 136 (1955). “F a irness of courseH U R L E S V

. R Y

A N 32

requires an absence of actual b ias in t h e t rial of cases. B ut

our sy stem of law has alway s endeavored to prevent e ven the probability of u nfairness.” Id .; cf. Mistretta v. United States
, 488 U.S. 361, 407 (1989 ) ( “T h e leg itimacy of the J udicial B ranch ultimately depends on its reputation for impartiality and nonpartisanship.”). This most basic tenet of o u r judicial
sy stem helps to ensure both the litig ants’ and the p ublic’s confidence that e ach c ase has been a djudicated fai rly by a neutral and detached arbiter.

“The Due Process Clause of the F ourteenth Amendment establishes a constitutional floor, not a uniform standard,” for

a j u d i cial bias claim. Bracy v. Gramley

, 520 U.S. 899, 904 (1997). W hi l e most claims o f judicial bias are resolved “by

common law, statute, or the professional standards of the bench and b ar,” the “floor establis h e d by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal’ before a judg e with no actual bias ag ainst the defendant or interest in the outcome of his particular case.” Id. at 90 4

– 0 5 (quoting W ithrow v. Larkin

, 4 21 U.S. 35, 4 6 (1975)). The Constitution requires recusal where “the probability o f a c tual bias on the part o f the judg e or d ecisionmaker is too hig h to be constitutionally tolerable.” W i t h r o w , 421 U.S. at 47. Our inquiry is objective. Caperton v. A.T. Massey Coal Co.
, 556 U.S. 868, 881 (2009). 1 W e do not ask whether J udg e Hilliard actually harbored subjective bias. I d. Rather, we ask whether

1 W e cite t o C

a p e r t o n , th e Su

p rem e Co u rt’ s recen t d ecisio n reg ard in g j u d icial b ias, th ro u g h o u t th i s o p in i o n

. Ca p erto n is n o t co n tro l lin g in so f ar

as it an n o u n ces n ew clearly estab lish ed Su p rem e C o u r t p reced en t th at p o st- d ates th e state co u rt d ecisio n at issu e h ere, alth o u g h w e d o n o t read Ca p erto n to an n o u n ce a n ew ru le o f l a w t h at af f ects o u r an aly sis. W e

r e fer to Ca

p erto n , h o w ev er, w

h ere w e f

in d its an aly sis o f p rev io u sl y estab lish ed Su

p rem e Co u rt j u risp ru den ce h elp f u l to o u r reso lu tio n o f th is

m atter.H U R L E S V

. R Y

A N 33

the averag e judg e in her position was likely to be neutral o r whether there ex isted an unconstitutional potential for b ias. I d. “Every procedure which would offer a possi b l e temptation to the averag e

. . . judg e t o f o r ge t the burden o f proof required to convict the defendant, or which mig ht lead him not to hold the balance n ice, c lear and true between the State and the accused, denies the [ a c cused] due pro cess o f law.” Tumey v. Ohio , 273 U.S. 510, 532 (1927).

Hurles need not p r o ve actual bias to e stablish a d ue process violation, just an intolerable risk of bias. Aetna Life I n s. Co. v. Lavoie
, 475 U.S. 813, 825 (1986); see al s o Caperton
, 556 U.S. a t 883 (“[ T ]he Due Process Clause has been implemented by objective standards that d o not require proof of a ctual bias.”) (ci t i n g Lavoie
, 475 U.S. at 825; Mayberry v. Pennsylvania

, 400 U.S. at 455, 465–66 ( 1 971); Tumey
, 273 U.S. at 532). Thus, w e must ask “whether ‘under

a realistic appraisal o f psy cholog ical tenden c i e s a nd human weakness,’ the [

judg e’s] interest ‘poses such a risk of actual bias o r prejudg ment that the p ractice must be forbidden if the
g uarantee of due process is to be adequately implemented.’” Caperton
, 556 U.S. at 8 83–84 (quoting W ithrow

, 421 U .S. at 47). Due process thus mandate s a “ s t ring ent rule” that may sometimes require recusal o f judg es “who have no actual bias and who would do their very best to weig h the scales o f j u stice e qually ” if there ex ists a “probability of u nfairnes s

. ” Murchis o n , 349 U.S. at 1 36. B ut this risk of unfairness has

no mechanical or static definition. I t “cannot be defined with precision” because “[ c] ircums t a nces and relationships must be considered.” Id.

F or instance, due process requires r ecusal where the judg e has a d irect, personal a

n d substantia l p ecuniary interest in convicting a defendant. Tumey
, 273 U.S. at 5 23, 532. OtherH U R L E S V

. R Y

A N 34

financial interests also may mandate recusal, even if less direct. Gibson v

. Berryhill

, 411 U .S. 564, 579 (1973); see also W ard v. Monr o e v ille

, 4 09 U .S. 5 7 (1972) (requiring recusal w here villag e may or with revenue productio n r o le

a l s o sat as a judg e a

n d imposed revenue-producing fin e s o n the defendant); Lavoie
, 475 U.S. at 824–25 (requiring recusal where (1) a justice of the state supr e m e c o u rt cast the deciding vote and authored an opinion upholding punitive damag es in c ertain insurances cases and (2) that same justice

was a plaintiff in a pending act i o n i n v o lving the same leg al issues from which he obtained a larg e monetary settlement). Non-pecuniary conflicts “that tempt adjudicators to d isreg ard

n e u t rality ” also o ffend due process. Caperton
, 556 U.S. at 878. A judg e must withdraw where she acts as part o f the accusatory process, Murchis o n , 349 U.S. at 137, “becomes embroiled in a running

, b itter controversy ” with one o f the litig ants, Mayberry

, 400 U.S. at 465, or b e c o m e s “so enmeshed in matters involving [ a lit i g a nt] a s to make it appropriate for another judg e to sit,” Johnson v. Mississippi
, 403 U.S. 212, 215–16 (1971).

W e now turn our attention to the matter at hand. Having catalog ued the Supreme Court’s clearly established judicial bias jurispr u dence a

nd being mindful of the limitations AEDPA places o n u s , w e must determine whether the state court erred in d eny ing H urles’s judicial bias claim. W e focus

our inquiry on J udg e Hilliard’s denial of H url e s ’s second PCR, as th a t five-pag e minute order is the last reasoned decision by the state court on the judicial bias claim. Barker

v. F leming

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

, 501 U.S. 797, 8 03–04 (1991); A v i l a v

. Galaza , 297 F .3d 911, 918 (9th Cir. 2002)).H U R L E S V

. R Y

A N 35

O rd i n arily

, we cloak the state c o urt’s factual finding s i n

a presumption of correctness. 2 8 U. S

. C

. § 2254(e)(1). However, we a fford such deferen c e only if the state court’s fact-finding process survives our intrinsic review pursuant to AEDPA’s “unreasonable determination” clause. See Taylor

, 3 6 6 F

. 3d a t 1000. Here, the state court’s fundamentally flawed fact-finding p rocess, to the ex tent it constitutes a process, fails our intrinsic review.

I n his second PCR, Hurles alleg ed judicial bias. He
arg ued that J udg e Hilliard responded to his spe c i a l action petition, received contemporaneous copies of e a c h pleading filed in her name, knew the pleading s were fr a m e d in terms of her personal opposition t o h i s r e quest for r elief, did not object to the tone or c o ntent of the pleading s and repeatedly denig rated defense counsel. Second PCR at 1-3–1-5. J udg e Hilliard then p resided over his trial and sentencing

, sentenced him to death, presided over and deni e d h i s f irst PCR a

nd presided o ver his second PCR. Second P C R a t 1

- 2

. J udg e Hilliard denied Hurles’s judicial bias claim.

J udg e Hilliard did not hold an ev i dentiary hearing o r provide another mechanism f or Hurles to develop evidence in support of his claim, despite her conclusion that Hurl e s “offer[ ed] no factual evidence to support h is alleg a tions.” Minute Entry
, Aug

. 9, 2002, at 2
, Hurles v. Schriro

, No. CI V00-0118-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. J ud ge Hilliard concluded that she did not specifically authoriz e a pleading to be f iled on h er 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 A riz o na Attorney General’s Office. I n effect, she offeredH U R L E S V

. R Y

A N 36

testimony in the form of her order d eny ing H urles’s second PCR. Minute Entry at 2. Hurles had n o opportunity to contest J udg e Hilliard’s version of events that took pl ac e y ears before. I n stead, J udge Hilliard a ccepted her f actual assertions as true a

n d r e lied on them to c onclude that “a reasonable and objective person would not f ind partiality

. ” See Minute Entry , Aug

. 9, 2 002, at 2, Hurles v. Schriro , No. CI V

- 00-0118-PHX-RCB (D. A riz

. 200 8 )

, ECF 72-1 at 19 (“Minute Entry ”).

J u d g e H illiard’s denial of H urles’s judicial bias claim
rests on an unreasonable determination of the facts. W e have held repeatedly that where a state court makes f actual finding s without an evidentiary hearing or other opportunity for the petitioner to present evid en c e , “the fact-finding
process itself is deficient” and not entitled to de f e r ence. Taylor

, 366 F .3d at 1001 (“I f, for e x a m p l e , a state court makes evidentiary finding s without h o lding a hearing a nd
g iving petitioner a

n opportunity to pre s e n t evidence, such finding s clearly result in an unreasonable determination of the facts.”) (internal quotation marks omitted); see also Perez v

. Rosario
, 4 59 F .3d 943, 950 (9th Cir. 2006 ) (amended) ( “I n many circumstances, a state court’s determination of the facts without an e v i dentiary hearing creates a presumption o f unreasonableness.”) ( citing Taylor

, 3 66 F .3d at 1000); Nunes

v. Mueller

, 350 F .3d 1045, 1055 (9 t h C i r

. 2003) (“B u t with the state court having refused [ the petitioner] a n ev i d e n tiary hearing

, w e need not of c ourse defer to the sta t e c o u rt’s f a c t ual finding s—if that is indeed how those stated findi n gs should be characteriz e d

—when they were made without such

a hearing

. ”); cf. Killian v. Poole

, 282 F

. 3d 12 0 4
, 1 2 0 8 (9th Cir. 2002) (“Having refused [ petitioner] an evidentiary hearing on the matter, th e s t ate cannot arg u e now that the normal AEDPA d eference is owed the factual determinationsH U R L E S V

. R Y

A N 37

of the [ state] courts.”); W eaver v. Thompson

, 197 F .3d 359, 363 (9th Cir. 1 999) ( a c c ording no deference where written
statements by trial judg e to defense counsel “were not subject
to any of the usual judicial procedures desig ned to en s u re accuracy ”).

T his case presents an especially troubling ex a mple o f defective fact-finding because the facts J udg e Hilliard “found” involved h e r o wn conduct, and she based those “finding s” on her untested memory and understanding of the
events. S e e Buffalo v. Sunn
, 854 F .2d 1158, 1165 (9th Cir. 1988) ( finding error when the court relied o n “personal knowledg e” to resolve disputed issue of fact); cf. Murchison

, 349 U.S. at 138 (“Thus the judg e whom due process requires
to be impartial in weig hing the ev i d ence presented before him, called on h is own personal knowledg e and impression o f what h ad occurred in the g rand jury room and his judg ment

was b ased in part on this impression, the acc u r ac y of which could not be tested by

adequate cross-ex amination.”).

W e cannot conclude, nor could any appellate p a nel, t h at the record supports J udg e Hilliard’s f a ctual finding s. I

d. at 1000. Any appellate court to whom this defect w as pointed
out would be unreasonable in holdi n g t hat J u d g e H illiard’s fact-finding process was adequate. Id. B ased on the flaws in the s t a te court’s fact-finding process, we conclude the state court decision resulted in a n “unreasonable determination o f the facts” and is not e ntitled to a presumption of correctness. See id. at 999 (holding unreasonable determinati o n clause applies where “the process employ e d by the state c ourt is defective”).

W h e r e a habeas petitioner has not f ailed to develop the factual basis of his claim i n s t a t e court as required b yH U R L E S V

. R Y

A N 38

28 U.S.C. § 2254(e)(2), an evidentiary hearing is required if (1) the petitioner has shown his e ntitlement to an evidentiary hearing pursuant t o T

o w nsend v. Sain
, 372 U.S. 293, 313 (1963), a nd ( 2 ) the alleg ations, if true, would entitle him to relief. Stanley

, 598 F .3d a t 624. A petitioner who h a s previously soug ht a

n d been denied an evidentiary hearing has
not failed to develop the f actual basis o f his claim. Id. (citing 28 U.S.C. § 2254(e)(2)); Se c o n d P CR at 1-7, 1-15 (seeking rig ht to litig ate judicia l b i a s c laim before a trial judg e other than J udg e Hilliard). Under Townsend , a federal court must
g rant a n e videntiary hearing in circumstances present here: (1) the state courts factual determinations are not fairly supported by the r e c o rd as a whole, and (2) the fact-finding procedure employ e d by the state court was not adequate to afford a full and fair hearing

. Townsend

, 372 U.S. at 313. Therefore, Hurles is entitle d t o an evidentiary h e aring if his alleg ations, if pro v e d

, would entitle h im to relief. Stanley

, 498 F .3d at 624. They

would.

I n determining whether Hurles enjoy ed “a f a i r t r i al in a fair tribunal,” Bracy
, 520 U.S. at 904, we mu s t c o n s ider whether the probability that J u dge H illiard harbored actual basis ag ainst Hurles is too hig h to be constitutionally tolerable, W

ithrow

, 421 U .S. at 47. We must ask whether the
averag e j u d ge , i n J udg e Hilliard’s position, was likely to sit

as a neutral, unbiased arbiter o r w h e ther there ex isted an unconstitutional risk of bias. Caperton
, 556 U .S. at 881. B ut to c onsider fairly the p otential for b ias, we must consider the
averag e r e as o n able judg e in the particular circumstances in which J udg e Hilliard found herself. Murchison , 349 U.S. at 136 (noting that the probability of unfairness “ca n n o t be defined with precision. C i r c u m s t a n c es and relationships must be considered.”). W hile H urles does n o t face the daunting task of proving actual bias in o r der to establish a due processH U R L E S V

. R Y

A N 39

violation, Lavoie
, 475 U.S. at 825, as the risk of a ctual bias o r prejudg ment g oes up, so, too, does the streng th of his judicial bias claim, see Caperton
, 556 U.S. at 883–8 4

. T h u s, a likelihood of unfairness w ould r equire recusal e ven if J udg e Hilliard did not actually harbor b ias ag ainst Hurles. Murchison , 349 U.S. at 136.

The te n o r of J udg e Hilliard’s responsive pleading in the special action proceeding

, by itself, sug g est strong ly that the
averag e judg e in her position c ould not later preside over Hu rles’s g uilt phase, p enalty trial and post-conviction proceeding s while holding “the b alance nice, clear and true” b e t w e e n the state a

n d Hurles. Tumey
, 273 U.S. at 532. B ut proof that J u dg e Hilliard participated in the special action proceeding s as more than a nominal party , h a d co n tact with F rench, commissioned or authoriz e d the responsive pleading

or provided any input o n the brief, would help establish that J udg e H illiard became “ so enmeshed in m a t t ers involving [ Hurles] as to make it appropriate for another judg e t o sit,” Johnson

, 403 U.S. at 215–16, or that J u d g e Hilliard became “embroiled in a r

unning

, bitter controversy ” with Hurles a

nd hi s c ounsel, Mayberry

, 400 U.S. at 465. See Murchison

, 349 U.S. at 137; Johnson

, 403 U.S. at 2 15. S u ch evidence certainly would show an unconstitutional risk of a ctual b ias.

B e cause Hurles’s alleg ation o f judicial bias would, if proved, entitle him to federal h abeas relief, the district court ab u s e d i ts d iscretion in deny ing this claim without an evidentiary

hearing

. Stanley , 598 F .3d at 626.

IV. CONCLUSION

F o r the foreg oing reasons, we remand for an evidentiary hearing on Hurles’s claim of judicial bias, r emand forH U R L E S V

. R Y

A N 40

consideration o f appellate counsel’s failure to raise Hurles’s Ake claim and otherwise affirm the district court.

AF F IRMED in part; REVE R S E D in part; REMANDED.

I KUTA, Circuit J udg e, dissenting :

Today the majority offers a new w a y to evade AEDPA deference: make an unsupported—and unsupportable— assertion that the state court’s f ac t f i n ding process is “unreasonable” for purposes of § 2254(d)(2). 1

1 A reaso n ab l e p erso n m a y w on d er w h y t h e m aj o rity h as reissu ed th is

o p in io n f o r th e th ird tim e, alm o s t f o u r y ears af

ter th e case w as su

b m i tted

o n Octo b er 7
, 2 0 1 0
, p articu larly w h en d o in g so w ill v acate a p rio r v ersio n

o f th e o p in io n w

h i ch h as b een th e su

b j ect o f a cert p etitio n pen d in g b ef ore th e Su p rem e Co u rt f

o r n early a y ear.

A b rief h isto ry i s in ord er. A f ter th e case w as su

b m itted in 2 0 1 0
, th e

m aj o rity issu ed its f

i rst o p in io n on J u ly 7
, 2 01 1

. 6 5 0 F.3 d 1 3 01 (9 th Cir. 2 0 1 1 ) (w i th d raw

n ). A f ter A rizo n a f

iled a p etitio n

f o r reh earin g , an d th e

m aj o ri t y o rd ered a resp o n se, th e m aj o rity w ith d rew its o pin io n an d reissu ed a rev ised o p in io n o n J an u ary 1 8
, 2 0 1 3

. 7 0 6 F.3 d 1 0 2 1 (9 th Cir. 2 0 1 3 ) (w ith d raw

n ). A n acco m

p an y in g ord er stated th at A rizo n a’ s p etitio n f o r reh earin g an d reh earin g en b an c w as m o o t. Id

. at 1 0 2 7.

On F eb ru ary 1
, 2 0 1 3
, A rizo n a f iled a m o t io n ask i n g th e co u rt to ru le

o n i ts p etitio n f

o r reh earin g en b an c w

h i ch h ad been p en d in g f

o r m o re th an 1 7 m o n th s. A

rizo n a a r g u e d th at i ts p etitio n f o r reh earin g w as n o t m o o t, b ecau se th e seco n d v ersio n o f th e o pin io n m ad e th e sam e m i stak e as th e f irst v ersio n : b o th o p in io n s sid estep p ed A EDP A d ef eren ce b y h o ld in g th at th e state trial co u rt m ad e an u n reaso n ab le d eterm in atio n o f th e f acts u n der 2 8 U.S.C. § 2 2 5 4 (d )(2 ).H U R L E S V

. R Y

A N 41

I n this c ase, the state judg e resolved a recusal motion based o n t h e judg e’s o w n understanding of w hether her impartiality mig ht be questioned. N othing abou t that is unusual: federal courts, including this one, u niformly adopt
t h i s approach. See, e.g. , S u ever v

. Connell

, 681 F .3d 10 6 4
, 1065 ( 9th Cir. 2012); see also Miles v. Ryan
, 697 F

. 3d 1090, 1090 (9th Cir. 2012). Yet the majority notes t h a t t h e state judg e did not hold an evidentiary hearing on the petitioner’s claim that recusal w as appropriate, and concludes that “[ a] n y appellate court to whom this defect was pointed out would be unreasonable in holding that [ the state judg e’s] f act-finding process was adequate.” Maj. op at 37.

W h i le A rizo n a’ s m o t io n w as p e n d i n g b ef o re th e p an el, Hu rles f

iled

a m o tio n to rem an d h is in ef f ectiv e assistan ce o f

co u n sel claim s p u rsu an t to Ma rtin ez v. Rya n , 1 3 2 S.Ct. 13 0 9 (2 0 1 2 ). A lth o u g h Hu rles’ s m o tio n

cam e a y ear af

ter Ma rtin ez w as decid ed

, an d w as clearly w aiv ed (as w ell

as b ein g m eritless, as ex p lain ed b elo w ), th e p an el stay ed th e m an d ate o n March 1 9
, 2 0 13
, p en d in g a d ecisio n b y o u r en b an c p a n e l i n D e t r ich v. Rya n , 74 0 F .3 d 12 3 7 (9 t h Cir. 20 1 3 ). W h en th is o pin io n w as i ssu ed in Sep tem b er 3, 2 0 1 3
, it d id n o t s h ed an y lig h t on Hu rles’ s Ma rtin ez m o tio n

. B u t th e p an el f

u rth er d ef

erred its ru lin g o n Hu rles’ s Ma rtin ez m o tio n p en d in g th e m an d ate o f th is co u rt’ s d ecisio n in Ng u yen v. Cu rry , 7 3 6 F.3 d 1 2 8 7 (9 th Cir. 2 0 1 3 ), w h ich w as f

i n ally issu ed in A

p ril 2 0 1 4

.

In f act, th e m aj o rity f

ailed to ad d ress A

rizo n a’ s Feb ru ary 2 01 3 m o tio n f o r a r u lin g o n its o rig in al p etitio n f o r reh earin g u n til to d ay

. Co n cern ed th at its p etitio n f

o r certio rari w ou ld b eco m e tim e b arred u n d er U .S. Su p rem e Co u rt Ru le 1 3(2 ), A ri z o n a f iled a p ro tectiv e petitio n f or certio rari o n J u n e 1 7
, 2 0 13

. T h e Su p rem e Co u rt f

irst d istrib u ted th is cert p etitio n f o r th e co n f

eren ce o f Sep t em b er 3 0, 2 0 1 3 , an d h as relisted it f or

ev ery su b seq u en t co n f

eren ce.

In th is th i rd op in io n , th e m aj o rity p e rsists in m ak i n g th e sam e erro r th at A rizo n a targ eted in its o rig in al p etitio n f o r rev iew

, an d b y v acatin g its

seco n d o p in io n , h as f

u rth er d elay ed th e Su

p rem e Co u rt’ s co n sid eratio n of th is erro r.H U R L E S V

. R Y

A N 42

Of course this co n clusion is wrong

. W orse, this conclusion is likely t o w o r k mischief by casting doubt on whether state and federal judg es can ever appropriately make recusal decisions without first holdi n g evidentiary hearing s. Making this conclusion e ven more absurd, the absence of an evidentiary hearing in this c ase is entirely irrelevant, because

even if a ll the pet i t ioner’s alleg ations were true, his d ue process rig hts were not violated.

And not only d oes the majority make th e d i s t rict court hold a meaning less evidentiary hearing

, but the majority also requires it to e ng ag e in another futile ex e rcise of considering whether the procedural default o f the claim that Hurles’s appellate counsel was in e f f ective f o r failing to raise a meritless claim under Ake v. Oklah o m a , 470 U.S. 68 (1985) should b e ex cused under M artinez v

. Ryan
, 132 S.Ct. 1309 (2012). B ecause even the most super ficial review of this defaulted claim demonstrates that it is facially meritless, the majority violates our case law and wastes judic i a l resources by remanding it for further review.

B e cause this opinion misreads the law, distorts the record, and casts off AEDPA deference on the basis o f a non-ex istent fact-finding f

law, I dissent.

I

A

The facts of Hurles’s crime form the backdrop f or the dispute over whether Hurles n eeded a second attorney , which is at the h eart of his habeas claim. The Ariz ona S u p r e me Court provided the following description:H U R L E S V

. R Y

A N 43

O n the afternoon of November 12, 1992, Hurl e s went to the B uckey e public library

, a small, house-ty

pe building i n a residential neig hborhood. The only employ ee in the library at the time was Kay B lanton. The last patron, other than Hurles, left the library just before 2:40 p.m. Hurles then locked the f ront doors to the library and attacked B lanton in the b ack room. He stripped off her underwear and p ulled her skirt above her w aist in an

un successful attempt to rape h er. Using a paring knife found in the back room of the library

, Hurles mortally wo u n ded B lanton, stabbing her thirty -se v e n times a nd inflicting blu n t force trauma by k icking her to such an

ex tent he tore her liver. . . .

[ Hurles then fled the scene.]

B e tween 3:00 and 4:00 p .m., Hurles rode [ a borrowed] b icy cle to the h ome o f his nephew, T h o mas, in B uckey e and asked Thomas for a ride to Phoenix

. Hurles h ad chan g e d his clothes and cleaned himself up somewhat, a

nd Thomas, who h ad been asleep and was unaware of B lanton’s murder, ag reed
to drive Hurles to P h o e n ix

. As the two left th e h o u se, Hurles was c arry ing a bundle o f clothes. During the drive to Phoenix

, Thomas noticed that H u r l e s had bite marks on his wrist. W he n asked about them, Hurles told Thomas he had been in a fig ht with a Spanish

man at the library

, that he had stabb e d the

man with the man’s knif e , and that he h adH U R L E S V

. R Y

A N 44

r e ce i v ed the bite marks in the fig ht. As par t of h is insanity defense, however, Hurles later claimed he had no recollection of a ny thing that occurred b e t w een sitting in the library and g oing out the back door.

As they continued toward Phoenix

, Hurles had Thomas pull o ver so he c o u l d toss the bundle o f clothes out the car window. Thomas left Hurles at a Phoenix bus station, where h e purchased a bus ticket to L as Veg as. Thomas ret urned to B u c k ey e, where he ultimately made contact with the police a nd told them of Hurles’ destination. L ater t h at evening

, the police intercepted Hurles’ bus on th e w ay to L as Veg a s; Hurles was removed from the b us, arrested, and returned to Phoenix

.

W ith Thom a s ’ help, the police recovered Hurles’ discarded clothes. Police found blood on the clothing that matched B lanton’s blood ty pe, w h i c h occurs in one p ercent of the population. Police a lso found blood matching B lanton’s ty

p e on Hurles’ shoes, which he

was still wearing when t a k en from the bus. F our bloody s h oeprints at the murder scene matched the soles of Hurles’ shoes, a nd Hurles’ p alm print was f ound on t h e paring knife left at the scene. . . .

. . . B lanton would have s uffered g reat terror as s h e was stabbed repeatedly b y Hurles. She also mu s t have suffered g reatH U R L E S V

. R Y

A N 45

pain. I n addition to the fifteen defensive stab wounds on her h ands, B lanton was stabbed eig ht times in the head, twelve times in the torso, a nd twice in her lower e x tremities. She als o suffered b lunt trauma consistent with kicking , which tore her liver.

The ba r ra g e of violence inflicted on B lanton, the fact that she was consci o us throug hout the a ttack, and her strug g le to fig ht off her attacker all indicate she suffered terribly and far above the norm of even first-deg ree 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 m u r d e r, Maricopa County appointed private defense coun sel to represent him. Hu rles made an ex parte motion for the appointment of a second co u nsel to a id in his defense. His arg ument was summary , c omprising only four and a h alf pag es. I n identify ing why he r equired the appointment o f a d ditional counsel, he made only three brief points: (1) “[ i] t is apparent that this case w ill involve numerous civilian and law enforcement witnesses”; (2) “the State will utiliz e the services o f forensic ex perts on the issues of identification a nd

sex ual assault”; and (3) “[ p] reparation f or the possible penalt y p h ase will [ be] in itself a time c onsuming

, c omplex process.” To support his arg uments on the third point, Hurles cited to California law, a n d its p r esumption that a second attorney is required in a death penalty case. As later noted b yH U R L E S V

. R Y

A N 46

the Ariz o na Court of Appeals, Hurles’s motion for a second attorney w as bare bones, and failed to make “ a particulariz ed showing on the need f

or second c ounsel.” Hurles v. Superior Court ( Hurles I ), 849 P.2d 1, 4 (Ariz

. Ct. App. 1993). The motion made no mention of possible defenses, did n ot discuss the siz e o f the defense’s witness p ool for e ither the g u i lt o r penalty phase, and did not specify any additional forensic o r other technical information the defense would present on its

own account. I n short, it provided no substantial factual basis
upon which the trial court could h ave c oncluded that a second attorney was necessary for H u r les to obtain adequate representation. I n stead, the m o tion simply asserted that f a ilure to appoint second counsel would potentially violate Hurles’s constitutional r ig hts be c a u se “[ d] efense counsel needs such c o-counsel assistance due to the n a ture of the case in order to effectively advise the defendant and ensure the defendant’s rig

ht to the effective assistance of counsel.”

After the state trial court (J u dg e Hilliar d ) d enied the request, Hurles filed a petition for s pecial action in the Ariz ona Court of Appeals, 2 raising t h e s ame arg uments he presented in his motion. Per A riz ona’s r u l e s for special actions, H urles named the tria l judg e, J udg e Hilliard, as a nominal respondent, and the State of Ariz ona, represented b y the office of the Maricopa County Attorney
, as the real party in interest. S

e e H u r l e s I
, 849 P.2d a t 2. I n r esponse, the Ariz ona Attorney General filed a b r i ef in J udg e H illiard’s

na m e , in which the Attorney General ex plained that the presiding c riminal judg e of the Maricopa County Superior

2 Un d er A

rizo n a law

, th e d en ial o f a m o tio n f or ap p o in tm en t of a seco n d

a t to rn ey is n ot im

m ed i ately ap p ealab le, an d so a p etitio n er seek s re vi e w

o f su ch a ru l in g b y f

ilin g a p etitio n f

o r s p ecial actio n in th e A rizo n a Co u rt

o f A p p eals. S ee Hu rles I

, 8 4 9 P .2 d at 1 n .1

.H U R L E S V

. R Y

A N 47

C ourt ( not J udg e H illiard) h ad r equested a responsi v e pleading in t h e special action. I d. at 2 n.2. T hen-current Ariz ona precedent h eld that a judg e h ad the rig ht to appear in special action proceeding s, even thoug h the judg e was merely

a nominal party

. Fenton v

. Howard

, 575 P.2d 318, 320 (Ariz

. 1978). The state Attorney General r e sponde d on J udg e Hilliard’s b ehalf because Maricopa County
, which was prosecuting Hurles, could not take a p osition on the selection of his counse l i n t he special action proceeding

. Hurles I
, 849 P.2d at 2.

The responsive brief ex plained the basis for J udg e H i l l i a r d ’ s d e t e r m i n a t i o n t h a t H u r l e s ’ s c a s e w a s straig htforward enoug h to be handled by one a t t o r n e y

. The brief r e v i e w e d the aspects of the case that were relevant to

ma k i n g this determination. Rather than describing the facts of the u n d erlying sex ual assault and murder, the brief stated only that the State had charg ed Hurle s “with the b rutal murder o f a librarian in B uckey e, A riz ona in No vember, 1992,” and listed the three charg es in the indictment. I t stated
t h at Hurles’s counsel had not y et noticed any defens e s , disclosed the names of witnesses, or requested a competency

ex a mination. I t then d escribed the State’s case aga i n st Hurles: “An ex aminati o n of the State’s evidence illustrates
t h a t its c ase ag ainst Petitioner is very simple a n d straig htforward, compared to other capital cases, contrary to Petitio n er’s a ssertions.” The brief noted that Maricopa County p lanned t o call relatively f ew witnesses, namely ten law enforcement ag ents, the medical ex aminer, an d several civilians

, c o ntrary to H urles’s claim that a second counsel

was required due to the hig h number of witnesses a nd forensic ex perts. F urther, the b rief stated that the county h ad

ex p ressed its intent to present the f ollowing phy sical evidence: Hurles’s clothing

, which w as “stained w ith bloodH U R L E S V

. R Y

A N 48

of the same PGM ty

pe as the victim’s, ” h i s footprint in the victim’s blood at the library

, and the “fact that books r eturned by [ Hurles] in the r e t u r n s l o t a t the library place him at the

scene a[ t] the time of the murder.” Thus, the brief focused on the straig h tforward nature of the State’s case and the facts in evidence; it did not discuss the merits or streng th o f t h e State’s case or presume that Hurles was g uilty of the murder with which he was charg ed.

Turning to Hurles’s leg al arg ument for appointment of a second attorney , the brief asserted that Hurles’s r eliance on C alifornia precedent was misplaced because Ariz ona h a d adopt ed different r

ules and procedures. Specifically

, according to the b rief, while Cal i fornia law presumed the necessi t y o f a second attorney in c a pital cases, Ariz ona h ad

no such presumption. F urther, in refuting Hurles’s claim that the need to prepare simultaneously for the g uilt and p ena l t y phases mandated the appointment of a second attorney , the brief noted that while California required sentencing to beg in within 20 d a y s o f the verdict, Ariz ona g ave a capital defendant 90 day s after the verdict to prepare for sentencing

, as well as the option to seek an ex t ension o f that time for
g ood cause. These procedural differences m ad e concurrent preparation for both phases far less u rg ent in Ariz ona than in its sister state.

I n response to H urles’s arg ument that appointment o f a second att o rn ey was necessary to “ensure the defendant’s rig ht to the effective assi s t a nce of counsel,” the brief stated that “if A ppointed Counsel believes, because of her caseload,
person a l competence, o r otherwise, that she is incapable o f rendering ‘competent representation’ of the Petitioner, she is ethically bound to w ithdraw from this case,” and asserted that there were other attorney s w ho provided contract services forH U R L E S V

. R Y

A N 49

Maricopa County w ho would be a b l e to provide competent representation.

C

B e fore addressing the merits of the special action petition, the Ariz ona Court of Appeals determined that the case raised “a sig nificant threshold question of standing ” that g ave the
court the chance to refine its jurisprudence on “whether—or under what circumstances—t h e trial court may properly respond” to a p etition for special action. Hurles I
, 849 P.2d
at 1–2. After noting that the real party in interest in the special action proceeding w as the State o f Ariz ona, the court stated that “the record does not indicate whether J udg e Hilliard, the nominal respondent, actually authoriz ed such a p l e a d i n g to be filed.” Id. at 2 n.2. F urther, the court stat e d that from the Attorney General’s statement at oral arg ument, “the p leading was r equested by the presiding criminal judg e , not by J udg e Hilliard, and there was no co n tact b etween J udg e Hilliard a

nd the Attorney General’s offic e a s the pleading was prepared.” I d.

Turning to the standing i s sue, the Ariz o na Court o f Appeals ackn o wledg ed that in Fenton v. Howard

, 575 P.2d 318 (Ariz

. 1978), the Ariz o n a Supreme Court had h eld that “a judg e does h a v e the rig ht to appear and to be represented in

a speci a l a c t i o n ag ainst him, where the judg e is a named respondent

, ” 5 7 5 P.2d a t 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 a s establishing “a trial judg e ’ s u nequivocal rig ht to respond to

a special action, whatever the nature of the decision the judg e seeks to defend.” Hurles I
, 849 P.2d a t 3

. Notwithstanding
t h is precedent, after ex amining cases sug g esting a narro w e rH U R L E S V

. R Y

A N 50

reading of Fenton
, see, e.g. , D unn v. Superior Cour t , 722 P.2d 1164, 1 166–6 7 ( A riz

. Ct. App. 1989), the A riz o na Court of Appeals held that a judg e desig nated 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 judg e to respond merely to advocate the correctness of an individual rulin g i n a sing le case.” Hurles I

, 8 4 9 P.2d at 3. A pply ing its new standing

ru l e t o the case before it, the court noted that because “the pleading merely a

rg ues that the respon d e nt judg e ruled properly on the evidence before her.

. . . the trial judg e lacked standing ” to file a brief in the special action. Id. at 4.

Turning its a ttention to the meri t s of the special action petition, the Ariz ona C o u r t of Appeals upheld J udg e Hilliard’s ruling

. B ecause Hurles’s couns el had f ailed to make “a particulariz e d showing ” o f the need for a second lawy er and d id not “submit evidence to the trial court reg arding customary p ractice in defense o f c apital c ases,” the
court found “no matter that warrants s pecial action intervention at this time.” Id.

The case proceeded to trial. H urles d id not raise a judicial bias concern b efore or after the t r i a l in which the jurors unanimously found him g uilty of p remeditated a nd felony murder. Nor did he raise such a concern at sentencing

, where

u n d e r then-current Ariz ona r ules, the trial judg e acted alo n e in imposing the death penalty

. Nor d id Hurles’s direct appeal

or first petition for p ost-conviction relief raise a judicial bias claim. 3

3 Per A rizo n a Ru le o f C rim in al P ro ced u re 3 2 .4 (e), Hu rles’ s f irst p etitio n f o r p o st- co n v ictio n

relief w as assig n ed to J u d g e Hilliard

. T h e trial co u rt d en ied th e p etitio n , an d t

h e A rizo n a Su

p rem e C o u rt af

f irm ed

. Arizo n a v.H U R L E S V

. R Y

A N 51

D

I n J anuary 2000, Hurles filed his first fed e r al h abeas petition in district court and filed an amended petition a few

m onths later. The d istrict court determined that Hurles h a d f a i l ed to present two o f his claims to state court, a n d s o Hurles returned to the state court to e x haust these claims. I n J anuary 2001, Hurles f

il e d a m otion in the state court proceeding s to r ecuse J udg e Hi l liard from f urther involvement in his case because he intended to file a second
pe t ition for post-conviction relief that would raise an appearance-of-bias due process claim based o n the special action proceeding

. Hurles’s recusal motion was referred to a different state trial judg e, J udg e B alling er, who ruled that there was no basis to transfer Hurles’s case to a nother judg e. 4

I n March 2001, Hurles submitted his second petition for post-conviction relief, which was assig n ed to J udg e Hilliard pursuant to A riz ona Rule of Criminal Procedure 32.4(e) a nd J udg e B alling er’s determination. J udge H i lliard noted the applicable objective test under Ariz ona law f o r recusal, specifically

, “whether a r easonable and objectiv e person knowing all the facts would h arbor doubts concernin g t he judg e’s impartiali t y

. ” I n describing the facts of the special action, J udg e Hilliard stated that the Attorney General had no

s p e c i f i c a uthoriz ation to file a p leading on her behalf in the

Hu rles

, No

. C R- 99

- 0 4 2 2

- P C, Ord er Den y in g P etitio n f o r R e v i e w (A riz. J an 7 , 2 0 0 0 ).

4 J u d g e Ballin g er co n stru ed Hu rles’ s m o tio n as a m o tio n f o r ch an g e of j u d g e f o r cau se, w

h ich

, u n d er A

rizo n a Ru l e o f Crim i n al P ro ced u re 10 .1 (a),

en titles a d ef

en d an t “ to a ch an g e o f j u d g e if a f air an d im p artial h earin g or trial can n o t b e h ad b y reaso n o f t h e i n terest o r p rej u d ice o f th e assig n ed j u d g e.”H U R L E S V

. R Y

A N 52

special action, and t h a t she (J udg e Hilliard) had made no contact with the Attorney General’s office. She further noted that Hurles h ad not p o i n t e d t o any aspects of the trial or the first petiti o n for post-conviction relief that indicated b ias. After ruling that the facts did n ot require her recusal as a matter o f state law a

n d did n ot a m o u n t to a due process violation, J udg e Hilliard r e j ected Hurles’s bias claim in Aug ust 2002. The Ariz ona Supreme Court affirmed without opinion.

W h i l e this state court proceeding was ong oing

, Hurles’s federal h abeas proceeding s were also moving forward slowly

. I n September 2 008, the district court d enied Hurles’s amended fede r al petition o n the merits. Hurles timely appealed.

I I

The c orrect application of A EDPA to this case is straig htforward. The state court determined th at J udg e Hilliard’s role in Hurles’s proceeding s did not deprive him o f hi s d u e p rocess rig hts. W e are tasked with d etermining whether that determination was contrary to Supreme C o u r t precedent for purposes of § 2254(d)(1). 5 A state court decision is “contrary to” c learly established Supreme Court precedent only if “the state court applies a r u le that

5 T h e state trial co u

rt’ s d ecisio n is th e last reaso n ed d ecis io n o n th is claim

, an d th eref

o re th e o n e th at w e m

u st co n sid er u n d er A EDP A rev iew

. S ee Ylst v. N

u nn ema ker

, 5 0 1 U.S. 79 7
, 8 0 5 (1 99 1 ). B ecau s e t h e co u rt did

n o t ex p re s sly ap p ly th e Su p rem e Co u rt’ s decisio n s co n sid erin g w h en a p ro b ab ility o f j u d icial b ias rises t o a c o n s t itu tio n al lev el, o n ly th e

“ co n trary to ” pro n g o f § 2 2 5 4 (d )(1 ) i s at issu e h ere. See W il l ia ms v. Ta ylo r , 52 9 U.S. 3 6 2 , 4 0 5

– 0 7 (2 0 0 0 ) (d escrib in g th e situ atio n s i n w h ich th e “ co n trary

to ” p ro n g w ill ap p ly ).H U R L E S V

. R Y

A N 53

contradicts the g overning law set forth i n S u p r e me Court

cases or i f t h e state court confronts a set of facts materially indisting uishable from those at issue in a decision of t he Supreme Court and, n evertheless, arrives at a result different from its precedent.” Lambert v. Blodgett

, 393 F

. 3d 943, 974 (9th Cir. 2004) (citin g Lockyer v

. Andrade

, 538 U.S. 63, 73 (2003)). F or AEDPA p urposes, a point o f law is not “ clearly established” if a state court c a n d raw a “prin c i p l ed distinction” between the case before it a nd the Supreme Court precedent e stablishing that rule o f 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, a nd it is actually quite a stretch to hold these p recedents applicable at all. The Due Process Clause requires r ecusal when “the probability o f actual bias on the part of the judg e or de c i s i o n m aker is too hig h to be constitutionally tolerabl e

. ” W ithrow v. Larkin

, 421 U.S. 35, 47 (1975). This sta n d a r d i s objective; judg e s must recuse themselves in circumstances that “would offer a possible temptation to the averag e man as a judg e

. . . not to hold the balance nice, clear, and true b etween the State a nd the accused.” In re Murchison

, 349 U.S. 133, 136 (1955) (quoting Tumey v. Ohio , 273 U.S. 510, 532 (1927)). J udg e s

are presum e d to a djudicate w ith “honesty and integ rity

, ” W ithrow

, 421 U.S. at 47, h owever, and the situations in which this presumption is overcome are rare: “[ M ] o st matters relating to judicial di s qualification do not rise to a constitutional level,” Caperton v. A.T. Massey Coal Co.
, 556 U.S. 868, 876 (2009) (quoting FTC v. Cement I nst. , 333 U.S. 683, 702 (1948)) (internal alteration omitted), and it isH U R L E S V

. R Y

A N 54

only in “rare instances” that the Constitution r equires 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 a ctual bias—n e c e s sitates recusal.” Crater v

. Galaza

, 491 F .3d 1119, 1131 (9th Cir. 2007). T he first arises where a judg e “has a direct, personal, sub s t an t ial pecuniary interest in reaching a conclusion ag ainst [ one of the litig ants] ,” id. (quoting Tumey
, 2 7 3 U .S. at 523) (internal quotation marks omitted), or where a financial connection to

a litig ant ( such as a massive campaig n donation from o ne party to the j u d g e) creates a constitutionally intolerable risk of bias, Caperton
, 556 U.S. at 884. The second o ccurs when

a judg e “becomes embroiled in a running

, bitter controversy ” with one of the litig ants. Id

. ( q u oting Mayberry v

. Pennsylvania

, 400 U.S. 455, 465 (1971)) (internal quotation marks omitted). F inally

, due process mig ht r e q u i r e recusal when a judg e “acts as ‘part of the accu s a t o r y process.’” Crater
, 491 F .3d at 1131 (quoting In re Murchison

, 349 U.S. at 137).

Other than those cases in which judg e s h a v e financial interests, which are not relevant h e re, the Supreme Court

cases requiring recusal based on an a p pearance of bias arise in the contex t of criminal contempt proceeding s. Caperton
, 556 U.S. at 880 (discussing pre c e d e n t). I n M urchison

, for

ex a mple, the Court held unconstitutional a Michig an practice in w hich judg es would order witnesses to appear b efore them, hold them in contempt, and then preside over their contempt trials. 3 49 U.S. at 134. The Court held it unconstitutional for

a judg e to preside over a trial in this situation; it a mounted to

a “judg e-g rand jury ,” which inappropriately involved the judg e in the “accusatory process.” I d

. a t 137. I n Johnson v

.H U R L E S V

. R Y

A N 55

Mississippi
, 4 0 3 U.S. 212 ( 1971) (per c uriam), the Court h eld it unconstitutional for a judg e to preside over an individual’s contempt trial, where the individual had been held in contempt two day s after successfully enjoining the j udg e from sy stematically ex cluding blacks and women f rom juries. Id

. at 214. That same y e a r, in Mayberry v. Pennsylvania

, 400 U

. S. 455 (1971), the Court h eld that a judg e who h ad been berated c ontinuously by a litig ant before f inally holding him in c ontempt c ould not preside over the contempt trial. Id.
at 4 6 5 (“No one so cruelly slandered is likely to maintain that calm detachment necessary for fair a djudication.”); see also Taylor v. Hayes
, 418 U.S. 488, 501–02 (1974) (relationship between judg e and lawy e r was such that Due Process Clause required another judg e for lawy e r’s contempt trial).

The fact that all these cas e s a rise in the contex t o f criminal contempt proceeding s is ins tructive because this hig hlig hts the c ircumstances where “the probability of actual bias

. . . is too hig h to be constitut i onally tolerable,” Caperton
, 556 U.S. at 877 ( quoting W ithrow

, 421 U.S. at 4 7). Specifically

, the probability of bias r e aches constitutional proportions when a judg e is in a p o s i t ion to first accuse an individual of wrong doing and then sit in judg ment of whether
any wrong was in fact committed.

B

The state c ourt’s r ejection of Hurles’s due process c laims

was not contrary to these precedents b e c a u s e Hurles’s alleg atio n s, even if true, do not g ive rise to any of these circumstances. According to the majority

, Hurles makes four alleg ations that, if true, “would show an unconstitutional risk of actual bias.” Maj. op. at 39. These four alleg ations a re that J udg e Hilliard: (1) “partic i p a t e d in the special actionH U R L E S V

. R Y

A N 56

proceeding s as more than a nominal party ”; (2) “had contact with F ren c h ” ; (3) “commissioned or authoriz ed the responsive pleadi n g” ; o r (4) “ provided any input o n the brief.” Id

. All four of these assertions are essentially the
same; they alleg e that J udge Hilliard had some (or even sig nificant) responsib ility for the contents of the special action brief defend i n g her decision to deny Hurles’s motion for a second attorney

.

B u t even a ccepting these alleg ations as true, the concerns identified by the Supreme Court do not a rise. F irst, this case does not involve a contempt hearing or a n y a nalog ous

s ituation; in the special action proceeding

, J udg e Hilliard neither acted as a p r o s e cutor n or soug ht to a dvance the prosecutor’s interest, and thus was not part of the “accusatory
pr o cess.” See Crater
, 4 91 F

. 3 d at 1131. The special action proceeding was ancillary to any dete r m i n a tion of g uilt o r penalty

, and involved an evaluation of the evidence only for the purpose of determining whether a se c o n d attorney was necessary

. As the Ariz ona Court o f Appeal s noted, J udg e Hilliard’s p leading “merely arg ues that the respondent judg e ruled properly on the evidence befor e h er.” Hurles I
, 849 P.2d at 4. This sort of pleading i s fully consistent with impartial adjudication.

Second, the record here does not show that J udg e Hilliard

was “ enmeshed” in matters involving Hurles, or that someone in her p osition would likely have a personal a nimus toward him. The contents of J udg e Hilliard’s brief are unremarkable. As d escribed abo v e, the brief e x plains the reasons J udg e Hilliard denied the motion, namely

, that the state’s evidence

was simple and straig htforward, H urles’s counsel h ad not i n d i cated an intent to put on a more complex defense

, a n d what was “required to prepare for trial in this case is ex actlyH U R L E S V

. R Y

A N 57

w h a t i s r equired of defense counsel in any criminal case. ” The Ariz ona Court of Appeals ag reed with this conclusion.

I ndeed, a fair review of the brief provides no support for
t h e majority ’s assertion that the “tenor of J udg e Hilliar d ’s responsive pleading in the special a ction proceeding

, by itself

, sug g est[ s] strong ly that the averag e judg e in her p o s i t i on could not later preside over Hurles’s g uilt phase, penalty trial and post- c o n v iction proceeding s” in an unbiased fashion. Maj. op. at 39 ( emphasis added). W hil e t h e b rief made mildly disparag ing remarks reg ardin g Hurles’s counsel (s u gge s t ing that if the counsel did not feel up to the task o f rendering competent representation without court-appointed co-counsel, she s h o u ld withdraw), the Supreme Court has

never h el d t hat a judg e’s sour or ill-tempered remarks alone create an appearance of bias necessitating recusal. See, e.g.
, Liteky v

. United S

tates , 510 U.S. 540, 55 5 –56 (1994) (“[ E] x p ressions of impatience, dissatisfaction, a nnoy ance, and even ang er, that a

re within the bounds of what imperfect

men and women, even a f

ter having been confirmed as federal judg es, sometimes display ,” does not necessit ate recusal under 28 U.S.C. § 455(a)); see also United S tates v

. McTiernan
, 6 9 5 F .3d 8 82, 892 (9th C i r

. 2 0 12) (holding that the presidin g j u dg e’s neg a tive comments toward the defendant, such as stating that the defendan t “ i s clearly willi n g t o lie whenever it suits his purpose” did not warrant recusal); cf. United States v. W ilkerson

, 208 F .3d 794, 799 (9th Cir. 2000) (“The dissent erroneously conflates a judg e’s asserted d ispleasure with ‘assuming the role of prosecutor’”). Thus, even if J u d ge H i lliard had personally penned the special action brief, Hurles did not suffer a due p rocess violation.H U R L E S V

. R Y

A N 58

I n sum, even if we were to review the due process issues in this case de novo, Hurles would b e u n a b le to establish a due process violation. F rom this, it follows a fortiori that the

s t ate court’s conclusion w as not “ contrary to” cle a r l y

e stablished p recedent. Thus, the c ourt is not reliev e d o f AEDPA deference under § 2254(d)(1), and the district court’s decision should be affirmed.

I I I

The majority do e s n o t eng ag e in this § 2254(d)(1) analy sis. I nstead, the majority holds tha t it is relieved o f AEDPA deference under § 2254(d)(2) because the state trial

c o u r t made an unreasonable determination of the f acts. Bu t the majority ’s claim that the state court’s fact-finding process was deficient in some material way is entirely

baseless.

A

I n considering a challeng e to a state cour t ’s f inding o f f a ct, AEDPA requires deference to state court decisi o n s unless those decisions are “objectively u n r e a s o n a b l e ,” not just incorrect. Lambert

, 393 F .3d a t 972; see a l s o Schriro v

. Landrigan

, 550 U.S. 465, 473 (2007). I n considering this sort of challeng e, “we must more than merely doubt whether the
process operated properly .” Taylor v. M addox

, 366 F .3d 992, 1000 (9th Cir. 2004). “Rather, we must be satisfied that any appellate court to whom the d ef e c t is pointed o u t would be unreasonable in holding that the state court’s fact-finding process was adequate.” Id.

A ccording to the majority

, when J udg e Hilliard rejec t e d Hurles’s claim ( in his se co n d P C R p etition) that she was biased d ue to her participatio n in the special actionH U R L E S V

. R Y

A N 59

p r o c e e d i n g, J u d ge H i l l i ar d e n ga ged in obj e c t i v el y unreasonable fact-finding

. Maj. o p at 35–36. The majority

c l a ims that J udg e Hilliard’s fact-finding p rocess was deficie n t because: (1) she r elied on her o w n recollections in determining that her role in the special action proceeding did
not require her recusal, Maj. o p. a t 35–36, and (2) she did not hold an evidentiary hearing to g ive H urles an opportunity to present e v i d e n c e

. Maj. op. a t 35. T he majority a sserts that
any appellate panel would be u nreasonable in finding J udg e Hilliard’s fact-finding

process adequate. Maj. op. at 37.

B

W ith all due respect, this reasoning does not pass the straig ht face test. W e cannot hold that J udg e Hilliard was objectively unreasonable in ruling o n t his recusal motion when federal judg es, like A riz ona judg es, routin e l y rule on motions to recuse themselves. See 28 U.S.C. § 455(a); Ariz

. Code o f J u d. Conduct R. 2

. 1 1 (A) (2009); see e.g. , M iles

, 697 F

. 3 d at 1 090 (B erz o n, J

. & Tallman, J

. ) (stating that “each judg e may decide for himself or herself whether recusal is a p p r opriate”); Suever
, 681 F .3d at 1065 (Nelson, J .) (determ i n i n g that she need not recuse herself from case because of the possibility of class membership). F o r the same reason, J udg e Hilliard was not ob j e c t ively unreasonable in consulting her own recollections ; federal judg es reg ularly determine the relevant facts in making recusal decisions. See,
e.g. , Cheney v. U.S. D ist. Ct. for the Dist. of Columbia

, 541 U.S. 9 13, 929 (2004) (Scalia, J .) ( e x p laining his friendship with then-Vice President Cheney

, and deciding not to recuse himself from a c ase in which Cheney was a nominal
p a rty ); Microsoft Corp. v. United States
, 530 U .S. 1 3 0 1
, 1301–02 (2000) (Rehnquist, C.J .) (dis c u s s ing his son’s

r e p resentation of Microsoft in another matter, but d ecid i n gH U R L E S V

. R Y

A N 60

not to r e cuse himself because no “well-informed individua l

w ould conclude that an appearance of impropriety e x ists” ) ; Perry v

. Schwarzenegger

, 6 30 F .3d 909, 912 ( 9th Cir. 2 011) (Reinhardt, J

. ) (discussing his relationship with his wife and her involvement in the m a t t e r before h im in the course o f

c o n c l u ding that “[ p] roponents’ contention that I should r e c u s e my self due to my wife’s opinions is b ased upon an outmoded conception of the relationship between spouses.”).

I f any thing

, the fact-finding process J udg e Hilliard
eng ag ed in was more careful and rea s o nable than those
eng ag ed in by judge s of this circuit on a reg ular basis, because she received a separate opinion from J u dg e Ba lling er, a different state c ourt judg e, who independent l y reviewed the record an d c o ncluded that there was no appearance of impropriety r equiring recusa l

. 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 inde p e n d ent judg e determined that recusal w a s not necessary ); Miles

, 6 97 F .3d at 1 090 (ho lding that a federal judg e may decide her own recusal a nd rejecting the arg ument that o ther f

ederal judg es should v ote on the issue). I n lig ht o f J udg e B alling e r’s review of the record a n d determination that J udg e Hilliard’s impartiality could not be rea s o n ably questioned, it se e m s impossible to c o nclude that all jurists would ag ree that the state c ourt made an unreasonable determination of the facts.

C

The majority ’s second r a t i o n a le for holding that it is relieved o f A EDPA deference, that no reasonable jurist could decide a r ecusal issue without holding a n evidentiary hearing

, is completely untenable and lacks any support in circuit o rH U R L E S V

. R Y

A N 61

Supreme Court precedent. Until today

, judg es routinely decided for themselve s whether recusal was appropriate in

cases where their impartiality mig ht be questioned. See, e.g. , Suever
, 681 F .3d at 1 0 65. Evidentiary hearing s were neither

r e quired nor ty

pically employ ed. See, e .g. , Miles

, 697 F. 3 d
at 1090. Today ’s opinio n , however, raises troubling implications, and casts serious doubt on the permissibility o f this long standing practice.

This case is a particularly b ad spring board for imposing

a new evidentiary h earing r equ i r e m ent. W e d o not f ault a state court for failing to hold an evident i a r y h e a ring if the petitioner has not identified any evidence ma t e r i a l to the constitutional claim. See Hibble r v

. Benedetti

, 693 F .3d 1140, 1 1 4 8 (9th Cir. 2012) (noting the well-established rule “that no [ evidentiary ] h earing is required [ i ] f the record refutes the a

pplicant’s factual a l l egations or otherwise precludes habeas relief.” (quoting La n drigan

, 550 U.S. at 474)) (quot a

t i o n m a rks omitted, second alteration in orig inal). Rather, unless an alleg ed factual error “ go es to a material factual issue that is central to petitio n e r ’ s claim,” Taylor

, 366 F .3d at 1001, there is no “unreasonable determination o f
t he facts” to justify relieving a federal court of A E D P A deference under § 2254(d)(2). Here, as previously ex plained,
supra Section I I
, even if a n evidentiary hearing p r oved that Hurles’s factual alleg ations were true, and we deemed J udg e Hilliard to be responsible for every word in the special action brief, Hurles did not suffer any violation of his du e process rig hts. Under these circumstances, an evidentiary h earing would hav e b e e n p ointless, a nd thus the state court was not unreasonable in declining to h old one. See Hibbler

, 693 F .3d
at 1 147 (“[ a] state court’s d ecision not to hold an evidentiary hearing does n ot render its fact-finding process unreasonable

so long as the state c ou rt could have reasonably concludedH U R L E S V

. R Y

A N 62

that the evidence already adduced was s u f f icient to resolve the factual question.” (citing Earp v. Ornoski

, 431 F .3d 1158, 1170 (9th Cir. 2005))).

I n short, there was nothing wrong with the state cour t’s fact-finding process. T his makes the majority ’s conclusion that any appellate panel “ w ould be unreasonable in h o l ding that J udg e H illiard’s fact-finding pro c e s s was adequate,” Maj.
op. at 3 7, 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

F inally

, even if w e w e r e r elieved o f AEDPA d eference, the majority errs in remanding the case to the district court for

an evidentiary hearing

. As the majority notes, the c ourt must f i n d that Hurles’s alleg ations, if true, would entitle h im to relief. See Stanley v. S

chriro

, 5 98 F .3d 612, 6 2 4 ( 9 th Cir. 2010). B ut as previously d iscussed, there i s simply nothing in the record, even under de novo r ev i ew , that sug g ests an unconstitutional risk of bias. As the Supreme Court recently reminded us, it is not enoug h for a federal court to identify an unreasonable determination of the facts, there must a lso b e a constitutional violation. See W ilson v. Corcoran , 131 S. Ct. 13, 14 (2010) (“F ederal courts may not issue writs of h abeas
corpus to state prisoners whose confinement does n ot violate fe d e ral law”) (per curiam). H ere there w as neither, a nd the remand is erroneous and a waste of judicial resources.

I V

Not content with evading AEDPA review by erroneously invoking § 2254(d)(2), the majority a lso improperly invokesH U R L E S V

. R Y

A N 63

Martinez to ex cuse H urles’s procedural default of his ineffective-assistance-of-appellate-counsel claims. Maj. op. at 18–21.

Martinez addressed a situation where a habeas p etitioner raises a procedurally d efaulted c laim of ineffective assistance of trial counsel. Under Martinez , a federal court can ex cuse the proce d ural default (and hear the claim) if: (1) the first place that claim could have been rais e d was in a state postconviction relief proceeding ( termed an “initial-review collateral p roceeding ” in M a r tinez ); (2) the post-conviction relief counsel’s failure to raise that claim constituted ineffective as s i stance of counsel under Strickland ; a nd (3) “ the underly ing ineffective-assistance-of-trial counsel claim is a substantial one.” Martinez
, 132 S. Ct. at 1318. I n order to show ineffective assistanc e of counsel under the Strickland standard, a p etitioner mu st show: ( 1) that the counsel’s performance was deficient, b ecause c ounsel “made

errors so serious that counsel was not f u n c tioning as the

‘ c o u n s e l ’ gu a r a n t e e d t h e d e f e n d a n t b y t h e S i x t h Amendment,” and (2) that this deficient performance was “so serious as to deprive the defendant of a f air trial, a trial whose result is r eliable.” Stri ck l a n d v

. W ashington

, 466 U.S. 668, 687 (1984). As the Supreme C o u r t has noted, we r eview ineffective assistance claims und er a “hig hly deferential”
stan dard, indulg ing “a strong presumption that counsel' s conduct falls within the wide rang e of reasonable professional assistance.” Id. at 689.

The majority here focuses on Hurles’s claim that his appellate counsel rendered ineffective assistance by failing toH U R L E S V

. R Y

A N 64

raise an A ke c laim to the state court. 6 Maj. op. a t 19–21. This claim is procedurally defaulted, b ut Hurles arg ues that the
court should ex cuse the default because it was c a used b y ineffective assistance o f post-conviction counsel. B ut

c o ntrary to the majority ’s conclusion, Hurles did not h a v e

cause to ex cuse this procedural default for a simple r ea son: There is no colorab l e c l a im that Hurles’s appellate counsel

was ineffective under St r ickland

, and therefore, postconviction relief counsel could not h ave been ineffective for f a i l i ng to bring a meritless ineffective-a s s i s t a n c e

- o f

- a p p e l l a t e

counsel claim.

Accor d ing to Hurles, appellate counsel’s error was the f a i lure to arg ue on appeal that the trial court’s d enial o f H u r les’s request for a brain scan violated Ake v. Okla h o m a , 470 U.S. 6 8 (1985). B ut the f ailure to raise such an Ake claim
to the state appellate court c ould not be ineffective assistance of counsel. At trial, Hurles presented an insanity defense. Under Ariz o na’s then applicable M' Naghten test for insanity

, Hurles had to p rove 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 t he a ct or, if [ he] did k now,

6 Hu rles claim s in ef

f ectiv e assistan ce o f a

p p ella te co u n sel, ev en th o u g h

su c h c l aim s are n o t co g n izab l e u n d er Ma rtin ez , w h ich o n ly allo w ed
p etitio n er s to raise p ro ced u rally d ef au lted claim s b ased o n in ef f ectiv e assistan ce o f tria l co u n sel. S ee Ma r tin ez , 1 3 2 S

. Ct. at 1 3 15

. M a rtin ez h eld th at t h e ru l e b arrin g pro ced u rally d ef au lted claim s “ g o v ern s in all b u t th e lim ited circu m stan ces” th e Su p rem e Co u rt h ad carv ed o u t in th at

o p in io n , w

h ich d id n o t in clu d e a p p e l l ate co u n sel claim s. Id

. at 1 3 2 0

. Nev erth eless, th e Nin th Circu it h as ig n ored th is lim itatio n , an d ex p an ded Ma rtin ez to ap ply to claim s o f in ef f ectiv e assistan ce o f a

p p ella te co u

n sel. S ee Ng uyen v. Cu rry , 7 3 6 F.3 d 1 2 8 7
, 1 2 8 9 (9 th Cir. 2 0 1 3 ). A l th o u g h th is h o ld in g is co n trary to Su p rem e Co u rt p reced en t, it is n ev erth e l ess th e settled law o f th is circu it. A cco rd in g l y , a co u rt in o u r circu it m u st

co n sid er Hu rles’ s claim s o f in ef f ectiv e assistan ce o f

ap p ellate co u n sel.H U R L E S V

. R Y

A N 65

that [ he] did not kn o w that what h e was doing was wrong

. ” Ariz

. Rev. Stat. § 13–502(A) (1993 )

. T h e state trial court p rovided Hurles with a psy chiatric e x pert to assist in h i s insanity defense, as requ i r e d by Ake

, and denied only Hurles’s request for a b r a i n s c an to confirm the e x pert’s diag nosis that Hurles had o r g a nic brain damag e. W h en the bra i n s c an was subsequently performed for the sentencing hearing

, it showed only “subtle nonspecific abnormalities

. . . associated with m i ld processing d ifficulty ” that were consistent with “attention deficit disorder.” 7

Under these circumstances, it would be reaso n ab l e for

a ppellate counsel to decide not to raise an Ake claim. Fi r s t , such a claim would be contrary to Ninth Circ u i t precedent. “B y its o wn terms, Ake ‘limited the rig ht it recog niz ed’ to the ‘provision of o ne competent psy chiatrist.’” Leavitt v. Arave
, 646 F .3d 605, 610 (9th Cir. 2011) (quoting Ake

, 470 U.S. at 79) (internal alterations omitted). We have e x plained that “the defendant lacks the rig ht to appo i ntment of a second
psy chiatrist even where the f irst psy chiatrist is alleg ed to be incompetent or reac h e s a diag nosis unfavorable to the defense.” Id. (internal quotation marks and citations omitted). I ndeed, we h ave s t a t e d that “ Ake’ s limitation to a sing le, inde p endent psy chiatrist is critical g iven that [ p] sy chiatry i s n o t

. . . an ex act science, and psy chiatrists disag ree widely and fr eq uently

. . . on the appropriate diag nosis.” Id. (internal quotation marks omitted); see also

7 I nd e ed

, th e test resu lts w ere so u n h elp f u l t h at Hu rles’ s atto rn ey at

sen ten cin g ig n o r ed th em f o r m itig atio n p u rp oses. Ev en th ou g h th e t rial

co u rt m u s t co n s id er an y relev an t m itig atin g f acto r, Ed d in g s v. O kla h o ma , 4 5 5 U.S. 1 0 4
, 1 1 2 (1 9 8 2), sen ten cin g co u n sel p ref erred to f o cu s o n a th eo ry t h at Hu rles’ b rain dam ag e w as n o t th e so rt th at sh o w ed u p in b rain

scan s.H U R L E S V

. R Y

A N 66

Pawlyk v

. W

ood

, 248 F .3d 815, 823 (9th Cir. 2001) (“[ A]
state is required to e nsure to a defendant only the provision o f

one competent ps y c hiatrist” ( internal quotation marks omitted)); Harris v

. V

asquez , 949 F .2d 1497, 1516–18 (9th C ir. 1990) (same). The majority sug g ests that appell a t e counsel could have disting u ished these and other cases, Maj.
op. at 1 9–20, but even were this p ossible, the decision not to raise su c h a claim falls well within the “ex ercise o f reasonable professional judg ment,” Strickland

, 466 U .S. at 690, g iven the weig ht of case law counseling ag ainst raising

an Ake cl ai m w h en the trial court denied funds for a second
psy chiatric ex pert.

F urther, even if appella t e counsel had a colorable leg al basis to claim there was an Ake error at tr i a l, the record established that any such e r r o r w as harmless bey ond a reasonable d oubt. Appellate counsel w ould have known that the brain scan prepared for Hurles’s s e n t e n cing h earing showed only that Hurles’ suffered from a “subtle a nd nonspecific abnormality ” consistent w ith a t t e ntion deficient disorder. Such evidence would not have helped Hurles prove by clear a nd 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 w as doing was w rong .” 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 ex p ert testimony that Hurles e x p erienced

a p sy chotic episode at the time o f the crime due to an unspecified brain injury

. Cf. Vicker s , 144 F .3d at 616 (rejecting an A ke claim when a n adverse finding would have “seriously undercut” the defense).

I n sum, appellate counsel c ould reasonably decide not to bring a cl a i m o f a trial-level Ake error because such a claimH U R L E S V

. R Y

A N 67

would have no support in the law, and any error would have been harmless. According ly

, the failure to bring such a claim could not be ineffective assistance of appellate counsel under Strickland. A nd b ecause there was no viable ineffectiveassistance-of-appellate-counsel claim based on the al leg ed Ake error, post-conviction c ounsel could not be ineffective for failing to raise it.

As a result, the majority doubly errs i n r emanding Hurles’s defaulted claim that appellate counsel rendered ineffective assistance of counsel. Hurles could ex cuse the procedural d efault only if post-conviction counsel w a s ineffective for failing to r aise this claim. B u t under a proper application of th e d e f

erential Strickland standard, the i n e f f e c t i v e

- a s s i s tance-of-appellate-counsel claim is me r i t l e s s , and therefore post-convictio n c o u nsel could not be ineffective for failing to raise it. W here “there is little d o u b t a b out the
correct answer” to the petitioner’s defaulted claims, the appellate panel should “ decide [ the] issue in the f irst instance rather than remand to the district court.” Detrich v. Ryan
, 740 F .3d 1 237, 1248 (9th Cir. 2013) (en banc) (plurality
op i nion). B y failing to apply S trickland ’s deferential standard correctly (or at all), the majority ig nored “the correct

a n s w er,” id.

, and according ly erred in ex cusing Hurles ’s default.

V

The Supreme Court has harsh ly criticiz ed o ur noncompliance with AEDPA deference. 8 Here the majority

8 S ee, e.g

. , Ca va zo s v. S

mith

, 13 2 S. Ct. 2
, 7 (2 0 11 ) (p er c u r iam ) (“ Do u b ts ab o u t w

h eth er Sm ith is in f

act g u ilty are u n d erstan d ab le. B u t it is n o t th e j o b o f th is Co u rt, an d w as n o t th at of th e Nin t h Circu it, to d ecid eH U R L E S V

. R Y

A N 68

repeats the same mistake corrected b y the Supreme Court in Harrington v. Richter

, 131 S. Ct. 770 (2011), n ow under the
g uise of a § 2254(d)(2) analy sis instead of § 2254(d)(1) review. As in Harrington
, the majority used its d e n ovo conclusion that Hurles suffered a due process violation as a spring board for its § 2 254(d)(2) r u ling

. I n effect, the majority holds that the st a te court’s factual determination was unreasonable because the court failed to acknowledg e that its

w h eth er th e State’ s th eo ry w as co rrect. T h e j u ry decid ed th at q u estio n , an d its d ecisio n is su

p p o rted b y th e reco rd .”); Cu llen v. Pin h o lster

, 1 3 1 S. Ct. 1 3 8 8
, 1 4 1 0– 1 1 (2 0 1 1 ); Felkn er v. Ja ckso n , 1 3 1 S. Ct. 1 3 0 5
, 1 3 0 7 (2 0 1 1) (p er cu riam ) (statin g th at o u r d ecisio n th at th e state co u rt’ s d eterm in atio n

w as an u n reaso n ab le d eterm in atio n o f th e f acts w as “ as in ex p licab le as i t is u n ex p lain ed ”); S

wa rth o u t v. C

o o ke

, 1 3 1 S

. C t

. 8 5 9
, 8 6 3 (2 0 1 1 ) (p er

cu riam ); Ha rrin g to n v. Rich ter , 1 3 1 S. C t. 7 7 0
, 7 8 5 (2 0 1 1 ); Premo v. Mo o re , 1 3 1 S. Ct. 7 3 3
, 74 0 ( 2 0 1 1 ); Rice v. Co llin s , 5 4 6 U.S. 33 3
, 3 4 2 (2 0 0 6) (“ T h e p an el m aj o rity ’ s attem p t to u se a set o f d eb atab le in f eren ces to set asid e th e co n clu sio n reach ed b y t h e state co u rt d o es n o t satisf y A EDP A ’ s req u irem en t s f

or g ran tin g a w

rit of h ab eas co rp u s.”); S

ch riro v. S mith

, 5 4 6 U

. S

. 6
, 8 (2 0 05 ) (p er cu riam ) (“ [T ]h e Co u rt o f A p p eals

ex ceed ed its lim ited au th o rity on h ab eas rev iew

. . . . ”); Mid dleto n v. McNeil

, 5 4 1 U.S. 4 33
, 4 3 7 (2 0 04 ) (p er cu riam ) ( “[ T h e Nin th Circu it’ s]

co n clu sio n f

ailed t o g iv e ap p ro p riate def eren ce to th e state c o u r t ’ s d ecisio n .”); Ya rb o ro u g h v. Gen try , 54 0 U .S. 1
, 1 1 (2 0 0 3 ) (p er cu riam ); W o o d fo rd v. Viscio tti
, 5 3 7 U.S. 1 9
, 2 0 (2 0 0 2 ) (p er cu riam ) ( r e v ersin g Nin th C ircu it’ s g ran t o f h ab eas relief b ecau se i t “ ex ceed [ed ] th e lim its im p o s ed o n f

ed eral h ab eas rev ie w b y 2 8 U .S.C. § 2 2 54 (d )”); Ea rly v. Pa cker

, 5 3 7 U.S. 3
, 1 0 (2 0 0 2 ) (p er cu riam ) (ad m o n ish in g th e N in th Circu it f o r “ rep eated ly an d erro n eo u sly su b stitu t[in g ]” th e p h

rase “ ‘ fa iled
to a p p l y ’ clearly estab lish ed Su p rem e Co u rt law ” f

o r “ th e m ore d em an d in g req u i rem en t o f § 2 25 4 (d )(1 ): th at t h e d ecisio n b e ‘ co n tra ry to ’ clearly estab lish ed Su

p rem e Co u rt law ” (em

p h ases ad d ed )); see g en era l ly Ho n

. Diarm

u id F. O’ Scan n lain

, A Deca d e o f Reversa l: Th e Nin t

h C ircu it’s Reco rd in t h e S u

p reme Co u rt T

h ro u g h Octo b er Term 2 0 1 0
, 8 7 No tre Dam e L . Rev . 2 1 6 5 , 2 1 6 8– 7 6 (2 0 1 2 ).H U R L E S V

. R Y

A N 69

participation in the special action proceeding had v iolated Hurles’s due p rocess r ig hts. Harrington corrected a similar

error: “The Court of A p p e a l s appears to have treated the

un re asonableness question a s 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 Ap p e a l s concluded the state court must have been unreasonable in rejecting it.” Har r i n g t o n , 131 S. Ct. at 786. Equally app l i cable is Harrington ’s criticism o f the Ninth Circuit f or “overlook[ ing ] arg uments that would otherwise justify the state court’s result.” Id. As in Harrington
, the majority here failed to weig h the evidence in the record that made the state court’s fact-finding process and factual conclusions reasonabl e , r ely ing instead o n an unprecedented view that judg es must hold evidentiary he ar i n gs o n recusal motions. F inally

, as Harrington stated, “[ i] t bears repeating that even a strong case for relief does not

m e a n t h e s t a t e c o u r t ’ s c o n t r a r y c o n c l u s i o n w a s unreasonable.” Id. The majority clearly lost sig ht of this rule, because there is no basis f or its holding that t h e s tate court’s f act-finding was e ither substantively or procedurally unreasonable. And even if Hurles’s factual alleg ations were t rue, they do not form the basis o f a due p rocess c l a i m , making r e m and for an evidentiary hearing wholly inappropriate. Turner v. Caldero n , 2 8 1 F .3d 851, 890 (9th Cir. 2002).

Our responsibility here is clear: under the strictures o f AEDPA and Supreme Court p r ecedent, we a re b ound to uphold the state court’s denial o f Hurles’s due process c laim, which is neither co n t r ar y to Supreme Court p recedent nor based on an unreasonable determination of the facts. B ecause the majority ’ s decision invalidates a lawfully imposed capital sentence, further fray s the (increasing ly threadbare) fabric o fH U R L E S V

. R Y

A N 70

our AEDPA jurisprudence, and lay s the g roundwork for other frivolous ha b eas challeng es to trial judg es’ impartiality

, I dissent.