FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD DEAN HURLES,

Petitioner-Appellant,

v.

CHARLES L. RYAN, Warden;

GEORGE HERMAN, Warden,

Arizona State Prison - Eyman

Complex,

Respondents-Appellees.

No. 16-99007

D.C. No.

2:00-cv-00118-DLR

OPINION

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted December 10, 2018

San Francisco, California

Filed February 1, 2019

Before: Sidney R. Thomas, Chief Judge, and Richard A.

Paez and N. Randy Smith, Circuit Judges.

Per Curiam Opinion
2 HURLES V. RYAN

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s judgment, on

remand for an evidentiary hearing, dismissing a habeas

corpus petition.

The panel could not say that the district court committed

clear error in its determinations, after conducting an

evidentiary hearing on remand, that there was no actual

judicial bias.

The panel held that the petitioner’s claim of ineffective

assistance of appellate counsel is not viable in light of Davila

v. Davis, 137 S. Ct. 2058 (2017), which held that the holding

in Martinez v. Ryan, 566 U.S. 1 (2012) – that a successful

claim of post-conviction ineffective assistance of counsel

can excuse a procedurally defaulted claim of ineffective

assistance of trial counsel – does not extend to procedurally

defaulted claims of ineffective assistance of appellate

counsel. The panel wrote that because Davila is clearly

irreconcilable with this court’s prior precedent, Nguyen v.

Curry, 736 F.3d 1287 (9th Cir. 2013), Nguyen does not

control the panel’s decision, and a prior panel’s pre-Davila

decision applying Nguyen to this case does not bind this

panel.

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

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

COUNSEL

Emily Katherine Skinner (argued) and Natman Schaye,

Associate Counsel, Arizona Capital Representation Project,

Tucson, Arizona; Denise Young, Tucson, Arizona; for

Petitioner-Appellant.

Julie Ann Done (argued), Assistant AttorneyGeneral, Capital

Litigation Section; Lacey Stover Gard, Chief Counsel; Mark

Brnovich, Attorney General; Office of the Attorney General,

Phoenix, Arizona; for Respondents-Appellees.

OPINION

PER CURIAM:

This appeal returns to us after a prior panel remanded the

case to the district court for an evidentiary hearing. Hurles v.

Ryan, 752 F.3d 768 (9th Cir. 2014). After considering the

record, briefs, and arguments, we affirm. The factual record

in the case was thoroughly discussed in our prior opinion, so

we need not recount it here.

Because Hurles filed his federal habeas petition in 2000,

the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs. Hurles, 752 F.3d at 777. AEDPA

“bars relitigation of any claim ‘adjudicated on the merits’ in

state court, subject only to the exceptions in §§ 2254(d)(1)

and (2).” Harrington v. Richter, 562 U.S. 86, 98 (2011). 

Relief should not be granted unless the state court

proceedings either “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the
4 HURLES V. RYAN

Supreme Court of the United States” or “(2) resulted in a

decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). Clearly established law

is limited to the Supreme Court’s holdings at the time of the

state court decision. Williams v. Taylor, 529 U.S. 362, 412

(2000). We review de novo the district court’s dismissal of

the petition and its findings of fact for clear error. Brown v.

Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).

1. The prior panel remanded the issue of judicial bias for

an evidentiary hearing on risk of actual bias. The district

court conducted a thorough hearing on that issue and made

factual findings that no bias occurred. After reviewing the

record, the briefs, and considering the arguments of counsel,

we cannot say that the district court committed clear error in

its factual determinations.1

2. As to the question of ineffective assistance of

appellate counsel, the prior panel excused the procedural

default because it held that post-conviction relief counsel was

ineffective in failing to raise the ineffective assistance of

appellate counsel claim. Hurles, 752 F.3d at 781–83. In so

holding, the panel applied Ngyuen v. Curry, 736 F.3d 1287

(9th Cir. 2013). Ngyuen is an extension of Martinez v. Ryan,

566 U.S. 1 (2012), where the Supreme Court held that a

successful claim of post conviction ineffective assistance of

counsel can excuse a procedurally defaulted claim of

1 Pursuant to the jurisprudential doctrine of law of the case, we

decline to reconsider matters pertaining to this issue which were decided

in the prior appeal. Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir.

1997) (en banc). The only question presented in this appeal is whether the

district court’s factual findings on remand were clearly erroneous.
HURLES V. RYAN 5

ineffective assistance of trial counsel. In Nguyen, we held

that the same reasoning applied to defaulted claims of

ineffective assistance of appellate counsel. Ngyuen, 736 F.3d

at 1289.

Subsequently, however, the Supreme Court decided

Davila v. Davis, 137 S. Ct. 2058 (2017), in which it held that

Martinez does not extend to procedurally defaulted claims of

ineffective assistance of appellate counsel. Id. at 2065–66. 

Where intervening Supreme Court authority is “clearly

irreconcilable” with prior circuit authority, the intervening

authority binds the panel. Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003). Intervening authority is clearly

irreconcilable if it “undercut[s] the theory or reasoning

underlying the prior circuit precedent.” Rodriguez v. AT & T

Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013)

(quoting Miller, 335 F.3d at 900). Because Davila is clearly

irreconcilable with our prior circuit precedent, Ngyuen does

not control our decision. Further, because Davila is

intervening authority, the prudential law of the case doctrine

does not bind this panel.2 Under Davila, the petitioner’s

claim is not viable.3

2

See Jeffries, 114 F.3d at 1488–89 (noting that intervening

controlling authority is one of the three exceptions to the law of the case

doctrine).

3 We are bound by our precedent emphasizing that “only the Supreme

Court could expand the application of Martinez to other areas,” and

“further substantive expansion” of Martinez is “not . . . forthcoming.” 

Pizzuto v. Ramirez, 783 F.3d 1171, 1176–77 (9th Cir. 2015) (refusing to

apply Martinez to procedurally defaulted claims of judicial bias); see also

Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (rejecting the

argumentthat Martinez permitted resuscitation of a procedurally defaulted

Brady claim). Even if Davila were construed to allow an exception to the

general rule under Coleman v. Thompson, 501 U.S. 722, 752–54 (1991),
6 HURLES V. RYAN

Given our resolution of the case, we need not, and do not,

reach any other issues presented by the parties.

AFFIRMED.

such an exception would not apply here. Trial counsel requested funding

for a Computer Assisted Topographic Mapping scan, which was then

denied by the state court on procedural grounds. Hurles suggests that

orders denied on procedural grounds should be considered as unpreserved

trial errors within the meaning of the potential exception identified in

Davila, but Davila does not draw that distinction and there is no other

support for that proposition in Supreme Court jurisprudence. Hurles’s

interpretation would considerably broaden the “limited circumstances”

meriting Martinez’s “highly circumscribed, equitable exception.” Id. at

2066 (citing Martinez, 132 S. Ct. at 1320).