No. 12-___________
`
`
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`CHARLES L. RYAN, DIRECTOR, ARIZONA
`DEPARTMENT OF CORRECTONS,
`Petitioner,
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`VS.
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`RICHARD D. HURLES,
`Respondent.
`
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`
`
`
`On Petition for Writ of Certiorari
`to the United States Court of Appeals for the Ninth
`Circuit
`
`PETITION FOR WRIT OF CERTIORARI
`
`TOM HORNE
`Attorney General of Arizona
`ROBERT L. ELLMAN
`Solicitor General
`JEFFREY A. ZICK
`Section Chief Counsel
`
`LACEY STOVER GARD
`Assistant Attorney General
`(Attorney of Record)
`Capital Litigation Section
`400 West Congress,
`Bldg. S-315
`Tucson, Arizona 85701
`Telephone: (520) 628-6654
`
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`

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`
`i
`
`CAPITAL CASE
`QUESTION PRESENTED
`Under the Anti-terrorism and Effective Death
`
`Penalty Act (AEDPA), are state court adjudications per
`se unreasonable and not entitled to deference under 28
`U.S.C. § 2254(d)(2) merely because the state court does
`not conduct an evidentiary hearing?
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`

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`
`ii
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`TABLE OF CONTENTS
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`
`
`PAGE
`QUESTIONS PRESENTED FOR REVIEW .............i
`TABLE OF AUTHORITIES .................................... iv
`OPINIONS BELOW ................................................. 1
`STATEMENT OF JURISDICTION ......................... 2
`RELEVANT CONSTITUTIONAL AND
`STATUTORY PROVISIONS ................................... 3
`STATEMENT OF THE CASE .................................. 4
`REASONS FOR GRANTING THE PETITION ..... 14
`ARGUMENT
`THE PANEL MAJORITY FAILED TO CONSIDER
`EVIDENCE IN THE STATE-COURT RECORD
`THAT SUPPORTED THAT COURT’S MERITS
`ADJUDICATION.
` INSTEAD, IT FOUND—
`CONTRARY TO ITS OWN PRECEDENT, THIS
`COURT’S AEDPA JURISPRUDENCE, AND THE
`DECISIONS OF OTHER FEDERAL CIRCUITS—
`THAT THE STATE COURT’S DECISION WAS
`UNWORTHY OF AEDPA DEFERENCE MERELY
`BECAUSE THAT COURT DID NOT CONDUCT
`AN EVIDENTIARY HEARING ......................... 16
`CONCLUSION ....................................................... 30
`
`
`
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`

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`
`
`iii
`iii
`
`APPENDIX A, ARIZONA COURT OF APPEALS
`APPENDIX A, ARIZONA COURT OF APPEALS
`SPECIAL-ACTION DECISION ........................... A-1
`SPECIAL-ACTION DECISION ......................... ..A-1
`
`APPENDIX B, ARIZONA SUPREME COURT
`APPENDIX B, ARIZONA SUPREME COURT
`DIRECT-APPEAL OPINION ............................... B-1
`DIRECT-APPEAL OPINION ............................. .. B-1
`
`APPENDIX C, NINTH CIRCUIT COURT OF
`APPENDIX C, NINTH CIRCUIT COURT OF
`APPEALS OPINION, JANUARY 2013 ............... C-1
`APPEALS OPINION, JANUARY 2013 ............. .. C-1
`
`APPENDIX D, ARIZONA SUPERIOR COURT
`APPENDIX D, ARIZONA SUPERIOR COURT
`MINUTE ENTRY DENYING PCR ...................... D-1
`MINUTE ENTRY DENYING PCR .................... ..D-1
`
`APPENDIX E, NINTH CIRCUIT COURT OF
`APPENDIX E, NINTH CIRCUIT COURT OF
`APPEALS OPINION, JULY 2011 ........................ E-1
`APPEALS OPINION, JULY 2011 ...................... ..E-1
`
`APPENDIX F, DISTRICT COURT ORDER
`APPENDIX F, DISTRICT COURT ORDER
`DENYING RULE 59(E) MOTION ....................... F-1
`DENYING RULE 59(E) MOTION ..................... .. F-1
`
`APPENDIX G, RESPONSE TO SPECIAL-ACTION
`APPENDIX G, RESPONSE TO SPECIAL-ACTION
`PETITION ............................................................. G-1
`PETITION ........................................................... ..G-1
`
`APPENDIX H, NINTH CIRCUIT ORDER OF
`APPENDIX H, NINTH CIRCUIT ORDER OF
`MARCH 19, 2013 ..................................................H-1
`MARCH 19,2013 ................................................ ..H-1
`
`APPENDIX I, MOTION FOR RULING ON
`APPENDIX I, MOTION FOR RULING ON
`MOTION FOR REHEARING ................................ I-1
`MOTION FOR REHEARING .............................. .. I-1
`
`APPENDIX J, DISTRICT COURT ORDER
`APPENDIX J, DISTRICT COURT ORDER
`DENYING HABEAS RELIEF .............................. J-1
`DENYING HABEAS RELIEF ............................ .. J -1
`
`APPENDIX K, SUPERIOR COURT MINUTE
`APPENDIX K, SUPERIOR COURT MINUTE
`ENTRY DENYING MOTION TO RECUSE ........ K-1
`ENTRY DENYING MOTION TO RECUSE ...... ..K-1
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`

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`
`
`iv
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` PAGE
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`CASES
`Buntion v. Quarterman,
`524 F.3d 664 (5th Cir. 2008) ........................ 21, 25
`Cash v. Maxwell, __ U.S. __, 132 S.Ct. 611 (2012) 16
`Cheney v. U.S. Dist. Ct. for the Dist. Of Columbia,
`541 U.S. 913 (2004)............................................. 19
`Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388
`(2011) ................................................................... 18
`Feminist Women’s Health Center v. Codispoti,
`69 F.3d 399 (9th Cir. 1995) ................................ 20
`Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007) .... 21
`Harrington v. Richter,
`__ U.S. __, 131 S.Ct. 770 (2011)... 17, 18, 22, 23, 24
`Hibbler v. Benedetti,
`693 F.3d 1140, 1147 (9th Cir. 2012) ............ 18, 28
`Hurles v. Ryan, 650 F.3d 1301 (9th Cir. 2011)
`(“Hurles III”) ........................................ 1, 12, 26, 27
`Hurles v. Ryan, 706 F.3d 1021 (9th Cir. 2013)
`(“Hurles IV”) ...... 1, 2, 5, 7, 8, 10, 12, 16, 17, 22–29
`Hurles v. Schriro, 2008 WL 4446691 (D. Ariz. Sept.
`30, 2008) ................................................................ 2
`Hurles v. Schriro, 2008 WL 4924780 (D. Ariz. Nov.
`17, 2008) ................................................................ 2
`Hurles v. Schriro, 709 F.3d 1317 (9th Cir. 2013)1, 22
`Hurles v. Superior Court (Hilliard), 849 P.2d 1
`(Ariz. Ct. App. 1993) (“Hurles I”) .................. 2, 5, 6
`In re Murchison, 349 U.S. 133 (1955) .................... 27
`Johnson v. Mississippi, 403 U.S. 212 (1971) ......... 26
`Liljeberg. v. Health Services Acquisition Corp.,
`486 U.S. 847 (1988)............................................... 9
`Liteky v. United States, 510 U.S. 540 (1994) ........ 28
`
`
`
`
`

`
`
`
`v
`
`Martinez v. Ryan,
`__ U.S. __, 132 S.Ct. 1309 (2012) ......................... 1
`Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ... 27
`Mendiola v. Schomig,
`224 F.3d 589 (7th Cir. 2000) .............................. 19
`Microsoft Corp. v. U.S., 530 U.S. 1301 (2000) ....... 19
`Miles v. Ryan, 697 F.3d 1090 (9th Cir. 2012) ........ 20
`Parker v. Matthews,
`__ U.S. __ 132 S.Ct. 2138 (2012) ........................ 30
`Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir.
`2011) .................................................................... 20
`Rice v. Collins, 546 U.S. 333 (2006) ....................... 23
`Schriro v. Landrigan,
`550 U.S. 465, 471, 476–77 (2007) .................. 18, 29
`Sharpe v. Bell, 593 F.3d 372 (4th Cir. 2010) ......... 18
`State v. Hurles, 914 P.2d 1291 (Ariz. 1996)
`(“Hurles II”) ................................................... 2, 4, 7
`Suever v. Connell, 681 F.3d 1064 (9th Cir. 2012) . 20
`Teti v. Bender, 507 F.3d 50 (1st Cir. 2007) ........... 19
`Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) ... 19
`Wellons v. Warden. Ga. Diagnostic and
`Classification Prison, 695 F.3d 1202 (11th Cir.
`2012) .................................................................... 20
`CONSTITUTI ONAL PROVISIONS
`U.S. Const. amend. XIV ............................................... 3
`
`STATUTES
`28 U.S.C. § 1254(1) ................................................... 2
`28 U.S.C. § 2254(d) ............................................. 3, 10
`28 U.S.C. § 2254(d)(1) ........................... 11, 14, 22, 26
`28 U.S.C. § 2254(d)(2) ........... 4, 11–14, 22, 23, 28, 29
`28 U.S.C. § 2254(e)(1) ............................................. 18
`28 U.S.C. § 455(a) ................................................... 24
`
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`

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`vi
`Vi
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`A.R.S. § 13–703(F)(6) ............................................ 7, 8
`A.R.S. § 13—703(F)(6) .......................................... .. 7, 8
`RULES
`RULES
`Ariz. Code of Jud. Conduct R. 2.11(A) (2009) .................. 24
`Ariz. Code of Jud. Conduct R. 2.11(A) (2009) ................ ..24
`Ariz. R. Crim. P. 11 ............................................................. 6
`Ariz. R. Crim. P. 11 ........................................................... ..6
`Ariz. R. P. Spec. Actions 1 .................................................. 5
`Ariz. R. P. Spec. Actions 1 ................................................ ..5
`Ariz. R. P. Spec. Actions 3 .................................................. 5
`Ariz. R. P. Spec. Actions 3 ................................................ ..5
`Ariz. R. Spec. Actions 2(a)(1) ............................................. 5
`Ariz. R. Spec. Actions 2(a)(1) ........................................... ..5
`Sup. Ct. R. 10 ............................................................... 15, 17
`Sup. Ct. R. 10 ............................................................. ..15, 17
`U.S. Sup. Ct. R. (13)(3) ....................................................... 1
`U.S. Sup. Ct. R. (13)(3) ..................................................... ..1
`U.S. Sup. Ct. R. 13(2) .......................................................... 1
`U.S. Sup. Ct. R. 13(2) ........................................................ ..1
`U.S. Sup. Ct. R.13 ................................................................ 2
`U.S. Sup. Ct. 11.13 .............................................................. ..2
`
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`

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`
`1
`
`OPINIONS BELOW
`
`The Ninth Circuit’s panel opinion withdrawing
`
`and superseding a previous panel opinion is reported
`at Hurles v. Ryan, 706 F.3d 1021 (9th Cir. 2013)
`(“Hurles IV”). (Appx. C.) The withdrawn panel
`opinion is reported at Hurles v. Ryan, 650 F.3d 1301
`(9th Cir. 2011) (“Hurles III”). (Appx. E.)
`
`
`In a published order reported at Hurles v.
`Schriro, 709 F.3d 1317 (9th Cir. 2013), the Ninth
`Circuit panel deferred ruling on two motions—
`Petitioner’s motion for a ruling on a motion to
`reconsider he filed after Hurles III, and Hurles’ motion
`to remand to the district court for reconsideration of
`certain claims in light of Martinez v. Ryan, __ U.S. __,
`132 S.Ct. 1309 (2012)—pending the court’s forthcoming
`en banc opinion in Detrich v. Ryan, Ninth Cir. No. 08–
`99001.1 (Appx. H.)
`
`
`
`
`
`1 Petitioner petitioned for rehearing from the Hurles III
`opinion; the panel deemed that petition moot in Hurles IV, 706
`F.3d at 1027. Petitioner disputed the mootness finding given that
`Hurles III and Hurles IV rested on the same erroneous application
`of AEDPA, and asked the panel to rule on his petition for
`rehearing. (Appx. I.) Petitioner obtained an extension of time to
`file the certiorari petition, in the hope that the Ninth Circuit
`would resolve the pending motions before the petition was due.
`The Ninth Circuit has not ruled on the motions, and Petitioner is
`compelled to proceed with the present certiorari petition, as his
`pending Ninth Circuit motion may not toll his filing period. See
`U.S. SUP. CT. R. 13(2) (“The Clerk will not file any petition for a
`writ of certiorari that is jurisdictionally out of time.”); (13)(3)
`(petition for rehearing tolls time for filing certiorari petition).
`
`
`
`

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`2
`
`The district court denied habeas relief in an
`
`unpublished decision reported electronically at Hurles
`v. Schriro, 2008 WL 4446691 (D. Ariz. Sept. 30, 2008).
`(Appx. J.) The district court denied Hurles’ motion to
`alter or amend the judgment in an unpublished order
`reported electronically at Hurles v. Schriro, 2008 WL
`4924780 (D. Ariz. Nov. 17, 2008). (Appx. F.)
`
`
`
`The state post-conviction relief (PCR) court
`denied the PCR petition relevant to Hurles’ present
`claim in an unpublished and unreported minute entry.
`(App. D.) The Arizona Supreme Court’s summary
`order denying review of the PCR court’s order is also
`unpublished. See Hurles IV, 706 F.3d at 1044.
`
`
`
`The Arizona Supreme Court’s opinion affirming
`Hurles’ conviction and death sentence on direct appeal
`is reported at State v. Hurles, 914 P.2d 1291 (Ariz.
`1996) (“Hurles II”). (Appx. B.) The Arizona Court of
`Appeals’ decision in a pretrial special-action proceeding
`involving an issue related to the present claim is
`reported at Hurles v. Superior Court (Hilliard), 849
`P.2d 1 (Ariz. Ct. App. 1993) (“Hurles I”). (Appx. A.)
`
`
`STATEMENT OF JURISDICTION
`The Ninth Circuit filed its opinion reversing the
`
`district court’s denial of habeas relief and remanding
`for an evidentiary hearing on January 18, 2013.
`Hurles IV, 706 F.3d at 1021. On April 12, 2013,
`Justice Anthony Kennedy extended Petitioner’s time
`for filing a certiorari petition to and including June 17,
`2013. See No. 12A970. This Court’s jurisdiction is
`timely invoked under 28 U.S.C. § 1254(1) and Rule 13
`of the Rules of the Supreme Court of the United States.
`
`
`
`

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`
`
`3
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`CONSTITUTIONAL AND STATUTORY
`PROVISIONS, AND RULES
`The Fourteenth Amendment to the United States
`Constitution provides, in pertinent part:
`
`
`No State shall . . . deprive any person of
`life, liberty, or property, without due
`process of law.
`28 U.S.C. § 2254(d) provides, in relevant part:
`
`(d) An application for a writ of habeas corpus
`on behalf of a person in custody pursuant to the
`judgment of a State court shall not be granted
`with respect to any claim that was adjudicated
`on the merits in State court proceedings unless
`the adjudication of the claim—
`
`
`
`
`(1) resulted in a decision that was
`
`contrary to, or involved an unreasonable
`application of, clearly established Federal
`law, as determined by the Supreme Court of
`the United States; or
`
`(2) resulted in a decision that was based
`
`on an unreasonable determination of the
`facts in light of the evidence presented in the
`State court proceeding.
`
`
`SUMMARY OF ARGUMENT
`The state PCR court rejected Hurles’ judicial-
`bias claim on the merits. Without considering facts in
`
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`4
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`the state-court record that supported the PCR court’s
`resolution of the claim, the Ninth Circuit’s panel
`majority
`found
`the PCR court’s adjudication
`unreasonable under 28 U.S.C. § 2254(d)(2), merely
`because the same state-court judge that Hurles
`accused of bias ruled on the claim, and did so without
`first conducting an evidentiary hearing. This decision
`contravenes AEDPA, this Court’s habeas jurisprudence,
`and decisions from the United States Courts of
`Appeals, including other decisions from the Ninth
`Circuit. Further, the absence of a state-court
`evidentiary hearing was irrelevant in this case, as
`there is no material factual dispute for such a hearing
`to resolve.
`STATEMENT OF THE CASE
`On November 12, 1992, Hurles went into a
`public library in a residential neighborhood in
`Buckeye, Arizona.2 Hurles II, 914 P.2d at 1293. Kay
`Blanton was the only person working in the library
`that afternoon. Id. After the last patron left the
`library shortly before 2:40 p.m., Hurles locked the
`doors, attacked Blanton in a back room, and tried
`unsuccessfully to rape her. Id. By the time the attack
`ended, he had stabbed her 37 times with a paring knife
`(which police later found at the scene) and kicked her
`so forcefully that he tore her liver. Id. During the
`attack, Blanton struggled unavailingly to reach a
`
`
`2 For a full discussion of the facts underlying Hurles’
`
`convictions, Petitioner refers this Court to the Arizona Supreme
`Court’s decision in Hurles II.
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`

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`5
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`
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`telephone to call for help. Id. at 1299. The attack left
`15 defensive stab wounds on her hands. Id. A jury
`convicted Hurles of first-degree murder, among other
`offenses, and a judge sentenced him to death for the
`murder conviction. Id. at 1293.
`
`1. Special-action proceeding.
`
`Prior to trial, Hurles’ counsel requested the
`appointment of second-chair counsel; the trial court,
`with Judge Ruth H. Hilliard presiding, denied the
`request. See Hurles IV, 706 F.3d at 1027. Hurles
`thereafter filed a petition for special action3 in the
`Arizona Court of Appeals, arguing that Judge Hilliard
`violated his constitutional rights by refusing his
`request for second-chair counsel. See id.
`
`The Maricopa County Attorney’s Office
`represented the State of Arizona, and declined to take
`a position on the special action. See Hurles I, 849 P.2d
`at 2. However, the Arizona Attorney General’s Office,
`which represents the Superior Court, filed a response
`on Judge Hilliard’s behalf defending her ruling. Id.
`(Appx. G.) The response noted that Hurles’ counsel
`had disclosed no witnesses, had noticed no defenses,
`
`
`
`3 A special-action proceeding is an interlocutory appellate
`proceeding available only “where there is [not] an equally plain,
`speedy, and adequate remedy by appeal.” Ariz. R. P. Spec. Actions
`1. Acceptance of jurisdiction is highly discretionary. Ariz. R. P.
`Spec. Actions 3, State Bar Committee Note. A party seeking
`special-action review of a judge’s ruling must list the judge as a
`nominal respondent to the proceeding. Ariz. R. Spec. Actions
`2(a)(1) & State Bar Committee Note (a).
`
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`

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`6
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`had not requested a competency evaluation pursuant
`to Arizona Rule of Criminal Procedure 11, and had not
`made clear whether she intended to place Hurles’
`mental state at issue at trial. (Id.) Conversely, the
`response continued, the State’s case was “very simple
`and straightforward” compared to other capital cases,
`as it consisted of eyewitness testimony, blood and
`shoeprint evidence connecting Hurles to the murder
`scene, and evidence that Hurles had returned books to
`the library that day. (Id. at G-9–G-10.)
`
`The response also addressed Hurles’ legal
`arguments, including his request that the Arizona
`Court of Appeals follow California law (which
`presumed the necessity of second chair counsel in
`death-penalty cases), and his contention that the
`absence of second counsel would violate the
`Constitution. (Id. at G-11–G-37.) And it opined that
`appointed counsel was ethically-bound to withdraw
`from the case, and possibly the Maricopa County list of
`contract defense lawyers, if she believed herself
`incapable of competently representing Hurles. (Id.
`at G-37–G-40.)
`
`At oral argument, Assistant Arizona Attorney
`General (“AAG”) Colleen French informed the Arizona
`Court of Appeals that she had filed the response on the
`presiding criminal judge’s request, and that there had
`been no communication between her and Judge
`Hilliard during the response’s preparation. Hurles I,
`849 P.2d at 2 & n.2. The Arizona Court of Appeals
`found that, although a trial judge is a required
`nominal party in a special action proceeding, she lacks
`standing to appear merely to assert that she ruled
`
`
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`

`
`
`
`7
`
`correctly. Id. at 2–4. Given that the response filed in
`Judge Hilliard’s name simply defended her ruling, the
`court concluded that she lacked standing to appear in
`the special action. Id.
`
`After resolving the standing issue, the court
`declined to accept jurisdiction over Hurles’ petition. Id.
`at 4. The court determined that the petition was
`premature because Hurles had failed to make a
`“particularized showing on the need for second
`counsel,” had failed to submit evidence to the trial
`judge regarding “customary practice in defense of
`capital cases,” and had failed to ask the trial judge
`whether second counsel could be appointed for a
`particular phase of the trial. Id. The court further
`observed that Judge Hilliard had not “preclude[d]
`counsel from attempting such a showing.” Id.
`
`2. Conviction and sentence.
`
`Hurles raised no allegation at trial or sentencing
`that Judge Hilliard was biased. See Hurles IV, 706
`F.3d at 1046. In April 1994, a jury unanimously found
`Hurles guilty of both premeditated and felony first-
`degree murder, first-degree burglary, and attempted
`sexual assault. Hurles II, 914 P.2d at 1293–94. Judge
`Hilliard found that Hurles had killed Blanton in an
`especially cruel, heinous, or depraved manner. Id.
`at 1299; see A.R.S. § 13–703(F)(6) (1992).
`
`two mitigating
`found
`Judge Hilliard
`circumstances: 1) Hurles was raised in a dysfunctional
`home environment and had a deprived childhood, and
`2) Hurles behaved well while incarcerated. Hurles II,
`
`
`
`

`
`
`
`8
`
`914 P.2d at 1299–1300. Judge Hilliard found the
`mitigation
`insufficiently substantial to warrant
`leniency and sentenced Hurles to death. Id. at 1294.
`
`3. Direct appeal and state PCR
`proceedings.
`
`
`
`On direct appeal, Hurles raised five claims of
`trial court error. See id. at 1294–99. He did not raise
`a judicial-bias claim. He also did not challenge Judge
`Hilliard’s imposition of a death sentence. Id. at 1299.
`The Arizona Supreme Court rejected Hurles’ trial-
`related claims. Id. at 1294–99. Despite Hurles’
`decision not to challenge his sentence, the court
`independently reviewed the record and the evidence of
`aggravating and mitigating circumstances
`“to
`determine whether the sentence is justified.” Id.
`at 1299. The Court found “overwhelming” evidence of
`the A.R.S. § 13–703(F)(6) cruelty factor and found
`Hurles’ mitigation insufficiently substantial to warrant
`leniency. Id. at 1299–1300.
`
`
`Following the Arizona Supreme Court’s direct-
`appeal opinion, Hurles filed two state post-conviction
`relief (PCR) petitions. Hurles did not raise a claim of
`judicial bias in his first petition, over which Judge
`Hilliard presided and at the end of which she denied
`relief. Hurles IV, 706 F.3d at 1029, 1044.
`
`In 2001, Hurles initiated a second PCR petition
`for the purpose of exhausting certain federal habeas
`claims. Id. at 1029, 1044–45. Before filing his
`petition, Hurles moved to recuse Judge Hilliard, as he
`intended to raise a judicial-bias claim based on her
`
`
`
`

`
`
`
`9
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`special-action
`the
`in
`involvement
`purported
`proceeding. Id. at 1029, 1045. The motion was
`referred to Judge Eddward Ballinger, Jr. Id. at 1029,
`1045. Judge Ballinger denied the motion, finding,
`after an objective evaluation of Judge Hilliard’s
`conduct, “no basis to transfer this case” to a different
`judge for the PCR proceeding. (Appx. K.)
`
`filed a PCR petition
`thereafter
`Hurles
`containing the present judicial-bias claim. Id. at 1029,
`1045. In rejecting the claim, Judge Hilliard recognized
`that a judge should disqualify herself in a proceeding
`in which her
`impartiality may reasonably be
`questioned. (Appx. D at D-2–D-4.) Citing this Court’s
`decision in Liljeberg. v. Health Services Acquisition
`Corp., 486 U.S. 847 (1988), and Arizona law, Judge
`Hilliard stated, “The test is an objective one: whether
`a reasonable and objective person knowing all the facts
`would harbor doubts
`concerning
`the
`judge’s
`impartiality.” (Id.) Judge Hilliard rejected Hurles’
`claim because she was not personally involved in the
`special-action proceeding and Hurles had offered no
`evidence calling into question her partiality:
`
`
`The trial judge is presumed to be
`impartial and the party who seeks
`recusal must prove the grounds for
`disqualification by a preponderance of the
`evidence. The facts here do not support
`disqualification and another judge, Judge
`Ballinger, so determined. In the special
`action in this case, the Attorney General
`filed a response on this judge’s behalf but
`without any specific authorization of such
`
`
`
`

`
`
`
`10
`
`a pleading. No contact was made by this
`judge with the Attorney General and this
`judge was a nominal party only. The
`special action was resolved five years
`before the first PCR was filed. Based on
`the circumstances of this case, the Court
`finds that a reasonable and objective
`person would not find partiality.
`
`… Hurles simply alleges bias and
`prejudice but offers no factual evidence to
`support his allegations. There is no
`allegation of partiality during the trial or
`that rulings or conduct during the first
`PCR
`demonstrated
`any
`bias.
`“Appearance of interest or prejudice is
`more than the speculation by the
`defendant. It occurs when the judge
`abandons the judicial role and acts in
`favor of one party or another. Hurles has
`failed to overcome the presumption of
`impartiality.
`
`
`(Id. at D-4–D-5; citations omitted.) The Arizona
`Supreme Court affirmed
`this decision
`in an
`unpublished order. See Hurles IV, 706 F.3d at 1044.
`
`
`4. District court proceedings.
`
`Hurles included the present judicial-bias claim
`in his amended petition for writ of habeas corpus, and
`the district reviewed it on the merits under 28 U.S.C.
`§ 2254(d). (Appx. J, at J-27–J-58.) The court analyzed
`opinions in which this Court had found that an
`
`
`
`
`
`

`
`
`
`11
`
`appearance of bias required recusal and found Judge
`Hilliard’s decision not unreasonable in light of those
`opinions. (Id.) See 28 U.S.C. § 2254(d)(1).
`
`The district court further rejected Hurles’
`contention
`that Judge Hilliard unreasonably
`determined the facts under 28 U.S.C. § 2254(d)(2)
`because she “‘relied on her untested personal
`recollection of the underlying events’ which ‘are not
`supported anywhere in the record.’” (Id. at J-47–J-50.)
`In particular, the court noted that other portions of the
`record “corroborate [Judge Hilliard’s] statement that
`she played no active role in [the special-action]
`proceeding”:
`
`
`Years before [the judicial-bias] issue was
`raised in the second PCR, [an Assistant
`Attorney General] told the Arizona Court
`of Appeals that the pleading filed by the
`Attorney General’s Office in the special
`action was not requested by Judge
`Hilliard and that there was no contact
`between her office and Judge Hilliard “as
`the pleading was prepared.” For these
`reasons, Petitioner’s contention that
`Judge Hilliard’s recollection was untested
`and not supported in the record is
`without merit.
`
`(Id. at J-50.) The court also rejected Hurles’ assertion
`that AAG French’s statement in a district-court
`pleading that she had had “‘communications with the
`Trial Judge during the special action proceedings’” cast
`doubt upon Judge Hilliard’s rejection of the judicial-
`
`
`
`

`
`
`
`12
`
`bias claim. (Id. at J-47–J-48 (quoting Dist. Ct. Dkt. #
`27, at 6).) The court found that neither French’s
`statements at oral argument, nor Judge Hilliard’s
`findings in her minute entry, “assert that Judge
`Hilliard had no communication of any kind with the
`Arizona Attorney General at any point during the
`special action proceedings, and are thus not
`inconsistent” with French’s district-court statements.
`(Id. at J-49.)
`
`
`5. Ninth Circuit proceedings.
`
`In July 2011, a divided panel of the Ninth
`Circuit reversed the district court, finding that the
`Judge Hilliard had employed a deficient fact-finding
`process to reject Hurles’ claim, and that this process
`resulted in an unreasonable factual determination
`under 28 U.S.C. § 2254(d)(2). Hurles III, 650 F.3d
`at 1311–14. Perceiving itself relieved of AEDPA
`deference, the panel majority reviewed the claim’s
`merits de novo and concluded that Judge Hilliard’s
`apparent bias violated Hurles’ due process rights. The
`majority granted the habeas writ and ordered the state
`to resentence Hurles. Id. at 1322. Judge Sandra Ikuta
`dissented, opining that the majority had improperly
`recast legal questions as factual ones to escape AEDPA
`deference. Id. at 1323–34. Petitioner filed a petition
`for panel rehearing and rehearing en banc.
`
` After over 1 year of inaction, the panel sua
`sponte withdrew its opinion, filed a superseding one
`and, as previously noted, deemed Petitioner’s motion
`for rehearing moot. Hurles IV, 706 F.3d at 1027. The
`majority panel adopted much of its previous reasoning
`
`
`
`

`
`
`
`13
`
`and again found 28 U.S.C. § 2254(d)(2) satisfied, but
`changed the relief
`it awarded Hurles from a
`resentencing to a federal-court evidentiary hearing. Id.
`at 1036–40. Although the majority claimed to be
`“mindful of the limitations AEDPA placed” on its
`review, it did not apply AEDPA’s deferential standards.
`Id. Rather, it identified what it perceived as a
`defective fact-finding process and stated—in conclusory
`fashion—that it could not “conclude, nor could any
`appellate panel, that the record supports Judge
`Hilliard’s factual findings.” Id.
` The panel majority specifically cited Judge
`Hilliard’s reliance “on her untested memory and
`understanding of the events” during the special-action
`proceeding to reject the claim, and her failure to
`conduct an evidentiary hearing. Id. at 1038–39. After
`finding that “proof that Judge Hilliard participated in
`the special action proceedings as more than a nominal
`party, had contact with French, commissioned or
`authorized the responsive pleading or provided any
`input on the brief, would help establish” Hurles’
`judicial-bias claim, the majority remanded to the
`district court for an evidentiary hearing. Id. at 1040.
`
`Judge Ikuta again dissented, observing that the
`panel majority had found “a new way to evade AEDPA
`deference:
`make
`an
`unsupported—and
`unsupportable—assertion that the state court’s fact
`finding process is ‘unreasonable’ for purposes of
`§ 2254(d)(2). Id. at 1040. She observed that “[t]he
`correct application of AEDPA to this case
`is
`straightforward,” and asserted that Hurles’ claim failed
`regardless whether reviewed under 28 U.S.C.
`
`
`
`

`
`
`
`14
`
`§ 2254(d)(1) or de novo, and even assuming that Judge
`Hilliard had personally participated in drafting the
`special-action response. Id. at 1040–48. Judge Ikuta
`also rebutted the panel majority’s (d)(2) analysis,
`observing that judges routinely rule personally,
`without conducting evidentiary hearings, on motions
`seeking their recusal. Id. at 1048–52. Given the
`foregoing, and that Hurles had identified no disputed
`material facts, Judge Ikuta opined that “the remand
`[for an evidentiary hearing] is erroneous and a waste of
`judicial resources.” Id. at 1052.
`REASONS FOR GRANTING CERTIORARI
`In this AEDPA case, the Ninth Circuit’s panel
`
`majority disregarded a reasonable state-court decision
`based on an illusory procedural error: the state-court
`judge’s reliance on facts within her personal knowledge
`to reject Hurles’ judicial-bias claim, and her failure to
`conduct an evidentiary hearing to permit Hurles to
`“test” her recollection. Without acknowledging (let
`alone deferring to) evidence in the state-court record
`that supported the judge’s factual determinations, the
`majority found those determinations unreasonable
`under 28 U.S.C. § 2254(d)(2) and remanded for an
`evidentiary hearing on, and de novo consideration of,
`Hurles’ claim. This reasoning conflicts with AEDPA,
`this Court’s jurisprudence interpreting that Act, and
`opinions from the federal circuit courts of appeals,
`including other panels of the Ninth Circuit.
`A state court is not required, as the panel
`majority implicitly held, to conduct an evidentiary
`hearing before its decisions are entitled to deference.
`And both federal and state judges rule routinely,
`
`
`
`

`
`
`
`15
`
`without first conducting evidentiary hearings, on
`allegations that they are biased; accordingly, the
`procedure followed in this case was not objectively
`unreasonable. Further, any defect in the state court’s
`fact-finding process was not material because Hurles
`cannot prove a due process violation, even assuming
`the truth of his factual allegations. Given these
`compelling reasons, see SUP. CT. R. 10, this Court
`should grant certiorari and reverse the Ninth Circuit’s
`opinion.
`. . . .
`. . . .
`. . . .
`. . . .
`
`
`
`

`
`
`
`16
`
`I
`
`
`THE PANEL MAJORITY FAILED TO
`CONSIDER EVIDENCE
`IN THE
`STATE-COURT
`RECORD
`THAT
`SUPPORTED THAT COURT’S MERITS
`ADJUDICATION.
`
`INSTEAD,
`IT
`FOUND—CONTRARY TO ITS OWN
`PRECEDENT, THIS COURT’S AEDPA
`JURISPRUDENCE,
`AND
`THE
`DECISIONS OF OTHER FEDERAL
`CIRCUITS—THAT
`THE
`STATE
`COURT’S
`DECISION
`WAS
`UNWORTHY OF AEDPA DEFERENCE
`MERELY BECAUSE THAT COURT
`DID
`NOT
`CONDUCT
`AN
`EVIDENTIARY HEARING.
`
` This Court has repeatedly condemned the Ninth
`Circuit’s misapplication—or nonapplication—of AEDPA
`deference.4 Once again, in this case, “it is not apparent
`how the Court of Appeals’ analysis would have been
`
`
`4 See Cash v. Maxwell, __ U.S. __, 132 S.Ct. 611, 616–17
`
`
`(2012) (Scalia, J., dissenting from the denial of certiorari)
`(collecting cases in which the Supreme Court has reversed habeas
`decisions from the Ninth Circuit and stating, “The only way this
`Court can ensure observance of Congress’s abridgment of [the]
`habeas power is to perform the unaccustomed task of reviewing
`utterly fact-bound decisions that present no disputed issues of law.
`We have often