No. 14-___________
`
`
`
`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
`Chief Counsel
`
`LACEY STOVER GARD
`(Attorney of Record)
`LAURA P. CHIASSON
`Assistant Attorneys General
`Capital Litigation Section
`400 West Congress,
`Bldg. S-315
`Tucson, Arizona 85701
`Telephone: (520) 628-6654
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`
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`CHARLES L. RYAN, DIRECTOR, ARIZONA
`DEPARTMENT OF CORRECTONS,
`Petitioner,
`
`
`
`
`
`
`
`
`VS.
`
`
`
`
`
`
`
`
`
`
`
`
`
`RICHARD D. HURLES,
`Respondent.
`
`
`
`
`
`
`
`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
`Chief Counsel
`
`LACEY STOVER GARD
`(Attorney of Record)
`LAURA P. CHIASSON
`Assistant Attorneys General
`Capital Litigation Section
`400 West Congress,
`Bldg. S-315
`Tucson, Arizona 85701
`Telephone: (520) 628-6654
`
`
`
`
`
`
`
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`
`
`
`
`i
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`CAPITAL CASE
`QUESTIONS PRESENTED
`1. Under this Court’s decision in Martinez v.
`
`Ryan, 132 S. Ct. 1309 (2012), can post-conviction
`counsel’s ineffectiveness provide cause to excuse the
`procedural default of an ineffective-assistance-of-
`appellate-counsel claim, or is Martinez limited to
`excusing only the default of a claim of ineffective
`assistance of trial counsel?
`
`2. Under the Anti-terrorism and Effective Death
`Penalty Act (AEDPA), is a state-court adjudication of a
`judicial-bias claim per se unreasonable under 28
`U.S.C. § 2254(d)(2) merely because the allegedly-biased
`judge rules on the claim based on facts within her
`knowledge without first conducting an evidentiary
`hearing, or must a federal court grant AEDPA
`deference to the judge’s determination when the
`evidence in the state-court record supports it?
`
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`
`ii
`
`TABLE OF CONTENTS
`
`
`
`PAGE
`QUESTIONS PRESENTED FOR REVIEW .............i
`TABLE OF CONTENTS .......................................... ii
`TABLE OF AUTHORITIES ..................................... v
`OPINIONS BELOW ................................................. 1
`STATEMENT OF JURISDICTION ......................... 2
`RELEVANT CONSTITUTIONAL AND
`STATUTORY PROVISIONS ................................... 2
`INTRODUCTION ..................................................... 3
`STATEMENT OF THE CASE .................................. 4
`REASONS FOR GRANTING THE PETITION ..... 14
`ARGUMENTS
`I
`MARTINEZ DOES NOT APPLY TO
`EXCUSE THE PROCEDURAL DEFAULT
`OF HURLES'S CLAIM OF INEFFECTIVE
`ASSISTANCE OF APPELLATE COUNSEL .... 15
`
`II
`THE PANEL MAJORITY CONTRAVENED
`AEDPA BY CASTING ASIDE THE STATE
`COURT'S REASONABLE REJECTION OF
`HURLES'S JUDICIAL-BIAS CLAIM
`BASED EXCLUSIVELY ON A NON-
`EXISTENT PROCEDURAL ERROR ................. 24
`
`
`
`
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`
`iii
`iii
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`CONCLUSION ....................................................... 35
`
`CONCLUSION ..................................................... ..35
`
`POST-CONVICTION RELIEF ........................... .. E-1
`
`APPENDIX A, NINTH CIRCUIT COURT OF
`APPENDIX A, NINTH CIRCUIT COURT OF
`APPEALS OPINION, MAY 2014 ......................... A-1
`APPEALS OPINION, MAY 2014 ....................... ..A-1
`
`APPENDIX B, ARIZONA COURT COURT OF
`APPENDIX B, ARIZONA COURT COURT OF
`APPEALS SPECIAL ACTION OPINION ............ B-1
`APPEALS SPECIAL ACTION OPINION .......... ..B-1
`
`APPENDIX C, ARIZONA SUPREME COURT
`APPENDIX C, ARIZONA SUPREME COURT
`DIRECT-APPEAL OPINION ............................... C-1
`DIRECT-APPEAL OPINION ............................. .. C-1
`
`APPENDIX D, NINTH CIRCUIT COURT OF
`APPENDIX D, NINTH CIRCUIT COURT OF
`APPEALS OPINION, JANUARY 2013 ............... D-1
`APPEALS OPINION, JANUARY 2013 ............. ..D-1
`
`APPENDIX E, TRIAL COURT MINUTE
`APPENDIX E, TRIAL COURT MINUTE
`ENTRY DENYING PETITION FOR
`ENTRY DENYING PETITION FOR
`POST-CONVICTION RELIEF ............................. E-1
`
`APPENDIX F, NINTH CIRCUIT COURT OF
`APPENDIX F, NINTH CIRCUIT COURT OF
`APPEALS OPINION, JULY 2011 ........................ F-1
`APPEALS OPINION, JULY 2011 ...................... .. F-1
`
`APPENDIX G, DISTRICT COURT ORDER
`APPENDIX G, DISTRICT COURT ORDER
`DENYING RULE MOTION TO ALTER
`DENYING RULE MOTION TO ALTER
`OR AMEND JUDGMENT .................................... G-1
`
`APPENDIX H, STATE'S RESPONSE TO
`APPENDIX H, STATE'S RESPONSE TO
`PETITION FOR SPECIAL-ACTION ...................H-1
`PETITION FOR SPECIAL-ACTION ................. ..H-1
`
`APPENDIX I, DISTRICT COURT'S
`APPENDIX I, DISTRICT COURT'S
`MEMORANDUM OF DECISION AND ORDER . I-1
`MEMORANDUM OF DECISION AND ORDER .I-1
`
`APPENDIX J, TRIAL COURT'S ORDER
`APPENDIX J, TRIAL COURT'S ORDER
`DENYING MOTION TO RECUSE ...................... J-1
`DENYING MOTION TO RECUSE .................... .. J -1
`
`
`OR AMEND JUDGMENT .................................. ..G-1
`
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`iv
`iv
`
`APPENDIX K, ARIZONA SUPREME COURT
`APPENDIX K, ARIZONA SUPREME COURT
`ORDER DENYING PETITION
`ORDER DENYING PETITION
`FOR REVIEW ....................................................... K-1
`
`FOR REVIEW .....................................................
`
`1
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`
`
`v
`
`TABLE OF AUTHORITIES
` PAGE
`
`
`
`
`
`CASES
`Ake v. Oklahoma, 470 U.S. 68 (1985) ........... 8, 14-15
`Banks v. Workman, 692 F.3d 1133
` (10th Cir. 2012) ................................................... 16
`Buntion v. Quarterman,
` 524 F.3d 664 (5th Cir. 2008) .......................... 26, 28
`Carranza v. Long, No. CV 13-155-R(JPR),
` 2104 WL 580240 (C.D. Ca. Feb. 12, 2014) .......... 32
`Cash v. Maxwell, 132 S. Ct. 611 (2012) .................. 24
`Cheney v. U.S. Dist. Ct.
` for the Dist. Of Columbia, 541 U.S. 913 (2004) .. 30
`Coleman v. Thompson, 501 U.S. 722 (1991) ..............
` ............................................................ 15, 17, 20, 22
`Cullen v. Pinholster, 131 S. Ct. 1388 (2011) .... 29, 33
`Dansby v. Hobbs, 133 S. Ct. 2767 (2013) ............... 16
`Dansby v. Norris, 682 F.3d 711 (8th Cir.) ............... 16
`Douglas v. California, 372 U.S. 353 (1963) ............ 19
`Dunn v. Swarthout,
` No. 2:11-CV-2731 JAM GGH P,
` WL 4654550 (E.D. Ca. Aug. 29, 2013) ............... 32
`Evitts v. Lucey, 469 U.S. 387 (1985) ...................... 19
`Feminist Women’s Health Center v.
`Codispoti, 69 F.3d 399 (9th Cir. 1995) ................ 31
`
`Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007) ..... 28
`Gideon v. Wainwright, 372 U.S. 335 (1963) ........... 21
`Harrington v. Richter, 131 S. Ct. 770 (2011) .............
` ..................................................................... 25- 27, 29
`Hibbler v. Benedetti,
` 693 F.3d 1140 (9th Cir. 2012) ......................... 28-29
`Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013) ..... 17
`Hurles v. Ryan, 751 F.3d 1096 (9th Cir. 2014)
`
` (Hurles V) .............................................. 1, 22, 32-33
`
`
`
`
`
`
`
`
`vi
`
`Hurles v. Ryan, 706 F.3d 1021 (9th Cir. 2013)
` (Hurles IV) ....................................................... 1, 32
`Hurles v. Ryan, 650 F.3d 1301 (9th Cir. 2011)
` (Hurles III) ....................................................... 1, 32
`Hurles v. Schriro, 2008 WL 4446691,
` (D. Ariz. Sept. 30, 2008) ........................................ 1
`Hurles v. Schriro, 2008 WL 4924780,
` (D. Ariz. Nov. 17, 2008) .......................................... 1
`Hurles v. Superior Court (Hilliard),
` 849 P.2d 1 (Ariz. Ct. App. 1993) (Hurles I) ........... 2
`In Re Murchison, 349 U.S. 133 (1955) ................... 34
`Johnson v. Mississippi, 403 U.S. 212 (1971) .......... 33
`Liljeberg v. Health Services Acquisition Corp.,
` 486 U.S. 847 (1988) ................................................ 9
`Litekey v. United States, 510 U.S. 540 (1994) ....... 34
`Martinez v. Court of Appeal of Cal.,
` Fourth App. Dist., 528 U.S. 152 (2000) .............. 18
`Martinez v. Ryan, 132 S. Ct. 1309 (2012) ..................
` ........................................................... i, 3-4, 13-23, 35
`Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ... 34
`Mendiola v. Schomig,
` 224 F.3d 589 (7th Cir. 2000) ................................ 28
`Microsoft Corp. v. U.S., 530 U.S. 1301 (2000) ....... 30
`Miles v. Ryan, 697 F.3d 1090 (9th Cir. 2012) ......... 30
`Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013)
` ..................................................... 14-17, 19-20, 22-23
`Packer v. Superior Court,
` 161 Cal. Rptr. 3d 595 (Cal. Ct. App. 2013) .......... 32
`Packer v. Superior Court,
` 314 P.3d 487 (Cal. 2013) ...................................... 32
`Parker v. Matthews, 132 S. Ct. 2138 (2012) .......... 36
`People v. Scott, 75 Cal.Rptr.2d 315 (1998) ............. 19
`Perry v. Schwarzenegger, 630 F.3d 909
` (9th Cir. 2011) ...................................................... 31
`
`
`
`
`
`
`
`vii
`
`Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014) ..... 17
`Renico v. Lett, 559 U.S. 766 (2010) ........................ 36
`Rice v. Collins, 546 U.S. 333 (2006) ....................... 25
`Saenz v. Van Winkle, No. CV 13-77-PHX-JAT,
` 2014 WL 2986690 (D. Ariz. July 2, 2014) .......... 23
`Schriro v. Landrigan, 550 U.S. 465 (2007)....... 29, 35
`Sharpe v. Bell, 593 F.3d 372 (4th Cir. 2010) .......... 28
`State v. Hurles, 914 P.2d 1291 (Ariz. 1996) ...............
` (Hurles II)........................................................... 1, 5
`Suever v. Connell, 681 F.3d 1064 (9th Cir. 2012) .. 30
`Teti v. Bender, 507 F.3d 50 (1st Cir. 2007) ............. 28
`Trevino v. Thaler, 133 S. Ct. 1911 (2013) ............... 21
`United States v. Ciavarella,
` 716 F.3d 705 (3rd Cir. 2013) ................................ 31
`Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) .... 28
`Wellons v. Warden Ga. Diagnostic and
`
` Classification Prison, 695 F.3d 1202
` (11th Cir. 2012) ..................................................... 28
`White v. Woodall, 134 S. Ct. 1697 (2014) ............... 25
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. VI .................................. 2, 17-20
`U.S. Const. amend. XIV ................................ 2, 18-19
`
`STATUTES
`28 U.S.C. § 455 ........................................................ 31
`28 U.S.C. § 1254(b)(1)(A) ........................................ 22
`28 U.S.C. § 1254(d) ................................. 2, 10, 25, 32
`28 U.S.C. § 1254(d)(1) ........................... 10, 13, 25, 33
`28 U.S.C. § 1254(d)(2) .................................................
` ........................................ i, 2, 4, 10-13, 24-26, 29, 32
`28 U.S.C. § 1254(1) ................................................... 2
`A.R.S. § 13–703(F)(6) ................................................ 8
`
`
`
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`
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`
`viii
`Viii
`
`RULES
`
`RULES
`Ariz. R. P. Spec. Actions 1 ......................................... 5
`Ariz. R. P. Spec. Actions 1 ....................................... .. 5
`Ariz. R. P. Spec. Actions 2(a)(1) ................................ 5
`Ariz. R. P. Spec. Actions 2(a)(1) .............................. .. 5
`Ariz. R. P. Spec. Actions 3 ......................................... 5
`Ariz. R. P. Spec. Actions 3 ....................................... .. 5
`U.S. Sup. Ct. R. 10 .................................................. 25
`U.S. Sup. Ct. R. 10 ................................................ ..25
`U.S. Sup. Ct. R. 13 .................................................... 2
`U.S. Sup. Ct. R. 13 .................................................. ..2
`
`
`
`
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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, 751 F.3d 1096 (9th Cir. 2014) (“Hurles
`V”). (App. A-1–A-76.) The withdrawn panel opinion,
`which itself withdrew and superseded a previous panel
`opinion, is reported at Hurles v. Ryan, 706 F.3d 1021
`(9th Cir. 2013) (“Hurles IV”). (App. D-1–D-59.) The
`first withdrawn panel opinion is reported at Hurles v.
`Ryan, 650 F.3d 1301 (9th Cir. 2011) (“Hurles III”).
`(App. F-1–F-72.)
`
`The district court denied habeas relief in an
`unpublished decision reported electronically at Hurles
`v. Schriro, 2008 WL 4446691 (D. Ariz. Sept. 30, 2008).
`(App. I-1–I-74.) The district court denied Hurles’s
`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).
`(App. G-1–G-7.)
`
`
`
`The state post-conviction relief (PCR) court
`denied the PCR petition relevant to Hurles’s present
`claim in an unpublished and unreported minute entry.
`(App. E-1–E-8.) The Arizona Supreme Court’s
`summary order denying review of the PCR court’s
`decision is also unpublished. (See App. K-1.)
`
`
`
`The Arizona Supreme Court’s opinion affirming
`Hurles’s conviction and death sentence on direct appeal
`is reported at State v. Hurles, 914 P.2d 1291 (Ariz.
`1996) (“Hurles II”). (App. C-1–C-20.) The Arizona
`Court of Appeals’ decision in a pretrial special-action
`
`
`
`
`
`
`
`2
`
`proceeding involving an issue related to one of the
`present claims is reported at Hurles v. Superior Court
`(Hilliard), 849 P.2d 1 (Ariz. Ct. App. 1993) (“Hurles I”).
`(App. B-1–B-10.)
`
`
`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 May 16, 2014. (App. A-
`1–A-76.) 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.
`
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS AND RULES
` The Sixth Amendment to the United States
`Constitution provides, in pertinent part:
`
`
`In all criminal prosecutions, the
`
`accused shall enjoy the right … to have
`the assistance of counsel for his defense.
`
`
` 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; nor deny to any person
`within
`its
`jurisdiction
`the
`equal
`protection of the laws.
`28 U.S.C. § 2254(d) provides, in pertinent part:
`
`
`
`
`
`
`
`
`
`
`
`3
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`(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.
`
`
`
`
`
`
`
`INTRODUCTION
`After this Court expressly found an equitable
`
`remedy for procedurally-defaulted claims of ineffective
`assistance of trial counsel, Martinez v. Ryan, 132 S. Ct.
`1309 (2012), every circuit court of appeals to consider
`the issue, save one, has followed the express holding of
`Martinez and rejected expanding it to claims of
`ineffectiveness of appellate counsel. Here, the Ninth
`
`
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`
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`
`4
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`Circuit stands alone amongst its sister courts in
`applying Martinez to excuse the procedural default of
`an ineffective-assistance-of-appellate-counsel claim.
`This unreasonable expansion of Martinez to claims of
`appellate counsel’s ineffectiveness will effectively open
`the floodgates to the merits review of numerous
`procedurally-defaulted substantive claims and will
`substantially
`weaken
`AEDPA’s
`exhaustion
`requirement. This Court should grant certiorari to
`resolve the conflict within the circuits and ensure that
`AEDPA’s exhaustion requirement continues to robustly
`safeguard federal-state comity.
`
`In addition, the Ninth Circuit found that the
`state court had unreasonably determined the facts on
`Hurles’s
`judicial-bias claim under 28 U.S.C. §
`2254(d)(2) without acknowledging evidence in the
`record supporting the state court’s resolution, let alone
`considering whether reasonable jurists could debate
`that ruling’s accuracy. Instead, the court found § (d)(2)
`satisfied for strictly procedural reasons: the state
`judge’s reliance on facts within her personal knowledge
`and her failure to conduct an evidentiary hearing to
`permit Hurles to “test” her recollection. Not only does
`this analysis contravene AEDPA and myriad authority
`from this Court and other federal circuits, but it also
`threatens to adversely affect the justice system by
`calling into question the manner in which many judges
`resolve recusal requests and laying the groundwork for
`habeas petitioners to evade AEDPA deference on
`judicial-bias claims. This Court should grant review to
`enforce the stringent limitations that AEDPA imposes
`on federal courts.
`
`
`
`
`
`
`
`
`
`5
`
`STATEMENT OF THE CASE
`On November 12, 1992, Hurles went into a
`public library in a residential neighborhood in
`Buckeye, Arizona.1 (App. C-2.) 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 front 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 had
`torn her liver. (App. C-1, C-4, C-18.) During the
`attack, Blanton struggled unavailingly to reach a
`telephone to call for help. (App. C-18.) The attack left
`15 defensive stab wounds on her hands. (Id.)
`
`1. Special-action proceeding.
`
`
`
`
`Prior to trial, Hurles’s attorney requested the
`appointment of second-chair counsel; the trial court,
`with Judge Ruth H. Hilliard presiding, denied the
`request. (App. A-3–A-4.) Hurles thereafter filed a
`petition for special action2 in the Arizona Court of
`
`
`1 For a full discussion of the facts underlying Hurles’s
`convictions, Petitioner refers this Court to the Arizona Supreme
`Court’s decision in Hurles II. (App. C-1–C-4.)
`
`
`
`2 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.
`(Continued)
`
`
`
`
`
`
`
`6
`
`Appeals, arguing that Judge Hilliard violated his
`constitutional rights by refusing his request for second-
`chair counsel. (App. A-4.)
`
`The Maricopa County Attorney’s Office
`represented the State of Arizona and declined to take a
`position on the special action. (App. B-2.) However,
`the Arizona Attorney General’s Office, which
`represents the superior court, filed a response on Judge
`Hilliard’s behalf defending her ruling. (App. H-1–H-
`17.) The response noted that Hurles’s counsel had
`disclosed no witnesses, had noticed no defenses, had
`not requested a competency evaluation, and had not
`made clear whether she intended to place Hurles’s
`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.)
`
`The response also addressed Hurles’s 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.) And it opined that appointed
`________________________(Continued).
`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. P. Spec. Actions
`2(a)(1) & State Bar Committee Note (a).
`
`
`
`
`
`
`
`7
`
`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 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. (App. B-2–
`B-8.) The Arizona Court of Appeals held that,
`although a trial judge is a requisite nominal party in a
`special action proceeding, she lacks standing to appear
`merely to assert that she ruled correctly. (App. B-7.)
`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.
`(App. B-8.)
`
`After resolving the standing issue, the court
`declined to accept jurisdiction over Hurles’s petition.
`(App. B-9–B-10.) 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.)
`
`
`
`
`
`
`
`
`
`8
`
`
`
`2. Conviction and sentence.
`
`Hurles raised no allegation at trial or sentencing
`that Judge Hilliard was biased. (App. A-54–A-55.) In
`April 1994, a jury unanimously found Hurles guilty of
`both premeditated and felony first-degree murder,
`first-degree burglary, and attempted sexual assault.
`(App. C-1, C-4.) Judge Hilliard found that Hurles had
`killed Blanton in an especially cruel, heinous, or
`depraved manner. (App. C-18.) See A.R.S. § 13–
`703(F)(6) (West 1992). After finding two mitigating
`circumstances: 1) dysfunctional home environment
`and deprived childhood, and 2) good behavior while
`incarcerated, Judge Hilliard found the mitigation
`insufficiently substantial to warrant leniency and
`sentenced Hurles to death. (App. C-19–C-20.)
`
`3. Direct appeal and state PCR
`proceedings.
`
`
`
`
`
`On direct appeal, Hurles raised five claims of
`trial court error but did not raise a judicial-bias claim.
`(App. A-54–A-55.) He also did not challenge Judge
`Hilliard’s imposition of a death sentence. (App. C-17.)
`Nor did he attack, under Ake v. Oklahoma, 470 U.S. 68
`(1985), her denial of funding for neurological testing.
`(See App. A-18–A-19.) The Arizona Supreme Court
`rejected Hurles’s trial-related claims. (App. C-4–C-17.)
`Despite Hurles’s decision not to challenge his sentence,
`the court independently reviewed the record and the
`evidence of aggravating and mitigating circumstances
`
`
`
`
`
`9
`
`insufficiently
`found Hurles’s mitigation
`and
`substantial to warrant leniency. (App. C-17–C-20.)
`
`
`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. (App. A-54–A-55.)
`
`In 2001, Hurles initiated a second PCR petition
`for the purpose of exhausting certain federal habeas
`claims. (App. A-7–A-8, A-55.) Before filing his
`petition, Hurles moved to recuse Judge Hilliard, as he
`intended to raise a judicial-bias claim based on her
`purported
`involvement
`in
`the
`special-action
`proceeding. (App. A-7–A-8, A-55.) The motion was
`referred to Judge Eddward Ballinger, Jr. (App. A-7–A-
`8, A-55.) 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. (App. J-1–J-2.)
`
`filed a PCR petition
`thereafter
`Hurles
`containing the present judicial-bias claim. (App. A-7–
`A-8, A-55–A-56.) In rejecting the claim, Judge Hilliard
`recognized that a judge should disqualify herself in a
`proceeding in which her impartiality may reasonably
`be questioned. (App. E-2.) 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
`
`
`
`
`
`
`
`10
`
` Citing Judge
`(App. E-2–E-3.)
`
`impartiality.”
`Ballinger’s previous determination that no objective
`reason existed to question her impartiality, Judge
`Hilliard rejected Hurles’s claim because she was not
`personally involved in the special-action proceeding
`and Hurles had offered no evidence calling into
`question her impartiality. (App. E-3–E-4.) In addition,
`she reiterated that no contact was made between her
`and the Attorney General’s Office in the special action
`proceeding as she was simply a nominal party. (Id.)
`The Arizona Supreme Court affirmed this decision in
`an unpublished order. (App. K–1.)
`
`
`4. District court proceedings.
`
`Hurles included the present judicial-bias claim
`in his amended petition for writ of habeas corpus, and
`the district court reviewed it on the merits under 28
`U.S.C. § 2254(d). (App. I-17–I-35.) The court analyzed
`opinions in which this Court had found that an
`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’s
`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.’” (App. I-28–I-29.)
`In particular, the court noted that other portions of the
`record corroborated Judge Hilliard’s recollection that
`there had not been contact between her and the
`
`
`
`
`
`
`
`
`
`11
`
`Attorney General’s Office during the special action’s
`preparation. (App. I-29–I-30.)
`
`
`The court also rejected Hurles’s 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-
`bias claim. (Id. (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. (App. I-29–I-30.)
`
`
`5. Ninth Circuit proceedings.
`
`In July 2011, a divided panel of the Ninth
`Circuit reversed the district court, finding that Judge
`Hilliard had employed a deficient fact-finding process
`to reject Hurles’s judicial-bias claim, and that this
`process
`resulted
`in an unreasonable
`factual
`determination under 28 U.S.C. § 2254(d)(2). (App. F-
`14–F-45.) 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’s due process rights.
`(Id.) The majority granted the habeas writ and
`ordered the state to resentence Hurles. (Id.) Judge
`Sandra Ikuta dissented, opining that the majority had
`improperly recast legal questions as factual ones to
`escape AEDPA deference.
`
`(App. F-45–F-72.)
`
`
`
`
`
`
`
`12
`
`Petitioner filed a petition for panel rehearing and
`rehearing en banc. (See App. D-1.)
`
` After over 1 year of inaction, the panel sua
`
`sponte withdrew its opinion, filed a superseding one
`and deemed Petitioner’s motion for rehearing moot.
`(Id.) The panel majority adopted much of its previous
`reasoning 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. (App. D-23–D-32.) Although the majority
`claimed to be “mindful of the limitations AEDPA
`place[d]” 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. (App. D-28–D-29.)
`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’s judicial-bias claim, the majority remanded to
`the district court for an evidentiary hearing. (App. D-
`32.)
`
`
`
`
`
`
`
`
`13
`
`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).” (App. D–32.) She observed that “[t]he
`correct application of AEDPA to this case
`is
`straightforward,” and asserted that Hurles’s claim
`failed regardless whether reviewed under 28 U.S.C.
`§ 2254(d)(1) or de novo, and even assuming that Judge
`Hilliard had personally participated in drafting the
`special-action response. (App. D-45–D-59.) Judge
`Ikuta also rebutted the panel majority’s (d)(2) analysis,
`observing that judges routinely rule personally on
`motions seeking their recusal, without conducting
`evidentiary hearings. (Id.) 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 D-57.)
`
` Following the opinion, Petitioner filed a motion
`seeking a ruling on the petition for rehearing he had
`filed after the July 2011 opinion, and Hurles filed a
`motion to remand the case to the district court to
`reconsider the procedural default of several claims
`under Martinez. (Ninth Cir. Dkt. # 63, 66.) The Ninth
`Circuit delayed ruling on the motions until several
`pending cases were resolved. (Ninth Cir. Dkt. # 76,
`83.)
`
` On May 16, 2014, the panel again withdrew its
`opinion and issued a superseding one. (App. A-1–A-
`76.) The panel majority did not change its analysis of
`
`
`
`
`
`
`
`14
`
`the judicial-bias claim.3 (App. A-33–A-42.) However, it
`granted Hurles’s motion to remand, for consideration
`under Martinez, a procedurally-defaulted claim that
`appellate counsel was ineffective for failing to
`challenge the trial court’s denial of neurological testing
`under Ake. (App. A-18–A-21.) The panel applied the
`Ninth Circuit’s decision in Nguyen v. Curry, 736 F.3d
`1287 (9th Cir. 2013), which extended Martinez to
`permit post-conviction counsel’s ineffectiveness to
`excuse the procedural default of an ineffective-
`assistance-of-appellate-counsel claim. (App. A-16.)
`
` Again, Judge Ikuta dissented, adopting her prior
`analysis of the judicial-bias claim. (App. A-56—A-68.)
`She also reluctantly accepted Nguyen as the law of the
`circuit, but recognized that it improperly expanded
`Martinez. (App. A-68–A-70 & n.6.) She further
`observed that Hurles had failed to state a colorable
`claim of appellate counsel’s ineffectiveness because
`counsel could reasonably have decided not to raise an
`Ake claim and that, even if counsel had raised such a
`claim, the Ake error would have been found harmless.
`(App. A-68–A-74.)
`
`
`
`
`
`
`
`3 In a separate order, the court denied Petitioner’s motion for a
`ruling on his prior motion for rehearing. (Ninth Cir. Dkt. # 87.)
`
`
`
`
`
`
`
`15
`
`REASONS FOR GRANTING CERTIORARI
`I
`MARTINEZ DOES NOT APPLY TO
`EXCUSE
`THE
`PROCEDURAL
`DEFAULT OF HURLES’S CLAIM OF
`INEFFECTIVE ASSISTANCE OF
`APPELLATE COUNSEL.
`
`This Court held in Coleman v. Thompson, 501
`U.S. 722, 752–53 (1991), that the ineffective assistance
`of post-conviction counsel does not establish cause to
`excuse the procedural default of a federal claim on
`habeas review. This remained the law for more than
`20 years, until this Court’s decision in Martinez
`established a n
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