Hurles v. Ryan

ORDER Bankruptcy decisions of the Courts given for the reasons

are affirmed Appellate publish- Panel its Bankruptcy Herrera, 422 in In re B.R. 698 opinion ed (9th 2010), January BAP filed Cir. to this order. appendix

and attached as Omitted for Appendix Note: [Editor’s Purposes of Publication]1 HURLES,

Richard D. Petitioner- Appellant, RYAN,* Respondent- L. Charles

Appellee. No. 08-99032. Appeals, United States Court of Ninth Circuit. Argued and Submitted Oct. 2010. July Filed * appellants Ryan prede- 1. The remand issue raised Charles L. is substituted for his cessor, Schriro, Dora B. as Director before this court is waived because it Servs., Inc., Cybernetic Department raised below. In re Arizona of Corrections. Fed. (9th Cir.2001). 43(c)(2). R.App. P. 252 F.3d 1045 n. 3 below, forth we

For reasons set denial reverse district court’s judicial highly bias claim. facts of case—in which the unusual party became involved as interlocutory appeal, an was denied stand- adversary, ing appear then preside over a murder trial proceeded single-handedly determine Hurles’s us to conclude compel death sentence — right Hurles was his denied due Young I. and Michael Aaron Denise facts raise process. exceptional These Tucson, AZ, Harwin, petitioner- of actual to an unconstitu- probability bias appellant. tional level. Goddard, Terry Attorney General of only counsel a requested Because new Phoenix, Arizona, AZ, respondent-ap- at oral sentencing argument, rather than a pellee. trial, we the district new remand to court Nielsen, Ari- E. Kent Cattani and J.D. grant instructions a writ of habeas General, Litigation Capital zona as to sentence corpus Petitioner’s unless Phoenix, Section, AZ, respondent- for the elects, days the State of Arizona within 90 appellee. mandate, the issuance of resen- jury presided tence Petitioner and before Hilliard, by judge over other than within a reasonable time thereafter be court. determined the district We do claims, remaining not reach Hurles’s they are now moot rendered relief PREGERSON, HARRY Before: D.W. judicial grant we for his bias claim. IKUTA, and SANDRA NELSON S. Judges. Circuit I. FACTUAL AND PROCEDURAL BACKGROUND Nelson; by Judge Opinion Dissent D.W. by Judge IKUTA. 12, 1992, just a On November few months after was released Hurles from OPINION years previous thirteen of incarceration for NELSON, Judge:

D.W. Senior Circuit crimes, at eyewitnesses placed him D. appeals Buckeye Library p.m. Richard the district Public around 2:00 denial of his court’s for writ of One witness saw him in the children’s sec- corpus just from conviction before at approximately habeas his murder tion she left argues p.m. death sentence. the dis- him “stare” and He 2:30 She observed judicial her, trict court erred on four issues: and she smelled alcohol from feet bias, ineffective left the li- sentencing away. assistance of When last witness counsel, only remaining ineffective appellate brary, people assistance of two were (related counsel, Blanton, procedural Kay default to Hurles and librarian. portions By p.m., of his assistance 2:45 visitors attempt- ineffective about when claims). library, they counsel to enter the found the ed lying scene, front door locked and saw Blanton in arrived at the having after attempt- a pool of blood. ed to reach a phone. Id. at 1299. She was transferred to hospital and died short- Walter, expert, Dr. defense described ly thereafter. Hurles’s account of time: Richard Hurles day offense, arrested present On the before the charged with first degree premeditated approximately eighteen Richard drank murder, degree murder, first throughout felony day only beers and had bur- glary, attempted sexual assault. evening. one meal The next Be- indigent, cause he was morning appointed he was the court still intoxicated. Rich- an attorney to represent him. large shortly ard ate breakfast before When the prosecution decided to seek nephew invited him to the death go pen- meet a alty, attorney woman and drink made an ex Allegedly, parte more beer. request Hilliard, they both had consensual sex with the trial judge, for the appointment of leaving. woman before co-counsel. While en [] practice house, designating route to his brother’s least two old ac- attor- neys dealer, capital quaintance, drug a cases was gave Richard standard at the Maricopa County congratulated a hit of L.S.D. and Public him on Defender’s Of- fice.1 getting prison. attorney out of Hurles’s cited Once back at the need to home, prepare for only Richard the guilt phase drank several more beers of capital Hurles’s going proceedings, before in library to return which she would later insanity some books. He raise an long is unsure how defense he and need to prepare expert testimony was there and has memory no and sci- evidence, entific actual offense. but also the complex sen- tencing phase. Judge After Hilliard de- Another witness saw Hurles leave the nied the request without explanation, library through the back door and followed attorney petitioned Hurles’s the court of street, him down the where they had a appeals special action, in a arguing that Hurles, brief conversation. State v. had abused her discretion. 199, 1291, Ariz. 914 P.2d 1293-94 Hurles then went home on a borrowed law, Under Arizona a is bicycle and requested that nephew his party nominal in special action proceed Thomas drive him to a Phoenix bus sta- However, ings. this nomenclature is a way, tion. Id. On the dumped Hurles his formality” “mere warranting no action on bloody along clothes the side of the road. part of the judge. State ex rel. Dean off, dropping Id. After Hurles Thomas la- Court, 189, v. City Ariz. 598 P.2d helped police ter find the discarded (App.1979); see also Supe Hurles v. clothes, and Hurles was arrested on a bus Court, rior 174 Ariz. 849 P.2d headed to Vegas. Las Id. (App.1993). case, however, In this Judge

In library, Blanton was found with appeared Hilliard responsive and filed a her clothes removed from the waist down pleading defending ruling. The judge thirty-seven and body. stab wounds on her represented was action at weapon Id. 1293. The a paring was Colleen French from the Arizona Attorney knife library. Hurles had found in the Id. General’s Office. As Ms. French admitted She was still conscious paramedics when proceedings, later she had at least some public 1. The attorney defender’s office was unable to appointed by Hurles's was the court represent due practitioner. conflict of interest. as solo Hilliard aggra- about then conducted Judge Hilliard communications represent- September in the of vation/mitigation hearing context Hurles’s case Hilliard ing Judge regarding to hear Hurles’s evidence ambigu- although the record proceeding, Arizona’s recommended sentence. Under those extent of the nature and as to ous time, capital sentencing scheme communications. Judge Hilliard the sole arbiter of was jury participated sentence. No Hurles’s Hil- responsive pleading,

In her overwhelming determining sentence. on the commented liard assem- guilt the state evidence following Hurles’s offered the counsel Hurles, which ren- evidence against bled regarding alleged evidence number and simple “very case dered factors, including diminished ca- mitigating addition, straightforward.” family background, dysfunctional pacity, competence questioned Hilliard education, intelligence lack of low “Clearly there attorney, stating, incarcerated: good behavior while attorneys provide contract who are other would Maricopa County who services a family Richard Hurles born into competent representa- provide be able to one of poor migrant farm workers as nine These simple in a case as as this.” tion eight Richard al- children sons.2 place took months before comments routinely placed ways slow and was in the case. presented had been evidence special classes school. Various doctors Appeals published Arizona Court diagnosed him points his life have standing denying decision retarded, mentally mentally borderline re- it ruling action and appear to tarded, and learning disabled. judges pleadings file improper for to Richard’s father was abusive John solely the correct- actions to defend and and predator, alcoholic sexual he Superi- their decisions. Hurles v. ness of passed these traits on to most Court, (App. Ariz. P.2d only children. 1993). Hurles John molested Addressing partic- daughter many years Debbie for until that it she specifically, the court held ipation into inappropriate escaped According “of the T-ruled-correct- foster care. to was (the sort,” ly’ which violated the “essential Edith Hurles ex-wife of one Rich- impartial adjudication” that [principle] brothers), problem no ard’s John also saw “no judges personal must have stake—and him, forcing with women to have sex with surely justiciable whether no stake—in woman, “if believing that a man wanted ultimately or reversed.” they are affirmed it, he should take her. If she did not want The court (emphasis original). at 4 Id. her.” John Richard’s raped force first jurisdiction petition. then declined over pull after Richard to girlfriend forcing Id. car over so he could take out routinely also the side road. John ruling

Despite Appeals’s the Court of children belt beat the with a leather or a improperly, had acted tree, from a and on one occasion he tri- switch preside over Hurles’s she continued Hurles bashed one of his children over head April jury al. found On a hammer. mother guilty charges. of all Richard’s Irene family. name in this members of the 2. We use the Petitioner’s first Hurles distinguish other so as to him from section abuse, protection no from John’s as Hurles has stated that he heard offered voices him telling “push was often the victim herself. Edith other she inmates down that John would beat the stairs.” He stairs Hurles remembered avoided so that he drunk, he and he was would not do got Irene “whenever what voices told him to all do. the time.” drunk drinking alcohol and Most have began

Richard doctors who examined Hurles gasoline mentally have sniffing paint, glue, age emotionally and found him and Bendheim, taught wanting. John his sons drink at Dr. who nine. examined early least him in ages relating and fed at one of the to child molestation toddler; children vodka as a alcohol and criminal him proceedings, described drug discouraged. “mentally abuse were As and never retarded illiterate.” Dr. explained, was routine for Tuchler “[I]t Richard concluded at same time that alcohol, high three or four of us to on Hurles incompetent be was stand trial due marijuana, Dr. or cocaine.” Stonefeld tes- to his “sociocultural intellectual de- during pre-sentence hearing mental fect[s]” tified “borderline retarda- family tion.” norm was abuse He in the prison’s [Hurles’s] was housed sec- “[t]he alcohol.” education ended tion for the mentally Richard’s retarded for over half permanently grade in the seventh after he of the thirteen he years jail Walter, caught sniffing paint proper- previous school Dr. crimes. who exam- paint He sniffed or twice ined him in ty. per once described him as “show- beginning ing twelve. At age age significant week of neuropsychological levels fourteen, approximately degree Richard added deficit” and an dysfunc- “overall marijuana joints per drug week to his tion ... represents performance five which ” intake, began experimenting and he with the ‘brain damaged range.’ Dr. Walter drugs, likely mushrooms also including thought other he suffered from both fifteen, began snorting depression heroin. At he thought and a disorder. Dr. to four smoking battery three lines of cocaine and Walter’s neuropsychological twenty-five marijuana per joints testing placed week and “in the damage brain a six-pack range increased his alcohol intake to of in six out of seven measures felt to per By ages of beer week. sixteen to be most to brain functioning.” sensitive seventeen, approximately testing a Post-conviction an “[h]e [drank] revealed abnor- beer, wine, of mality ease two to three fifths of in the left lobe of frontal his brain. pints whiskey, eighty mari- two smoked Dr. Walter concluded alcohol and joints, juana grams two and snorted drug pronounced abuse have a more effect twelve lines of cocaine each week.” He on someone developmental with Hurles’s drug maintained this level of abuse until limitations, exacerbating his mental defi- he first At that incarcerated. time he cits and “more leading to blatant cerebral to Dr. reported Tuchler he was dysfunction.” Similarly, Dr. Bendheim ex- “drinking day all if the money.” ha[d] he plained, “This of intoxication in a type hearing has reported giv- mentally Richard voices further person retarded reduces him violent his ing intermittently judgment, capacity commands his to adhere to the age During fully his society since seventeen. first stint norms the law and to 1978, in prison prescribed appraise consequences in an he was nature Mellaril, anti-psychotic relating his even drug, suppress opined, He action[s]....” voices. for drug He later took same Hurles’s conviction child molesta- tion, again prison “According history after the murder 1993. to the as I was with unlikely al- nefeld considered it consistent his it, that the it is most taking that he did diagnoses of Hurles and could have been committed leged would offense “structured, or, very orderly” severely thrive intoxicated if he not been intoxication, prison system. if he had environment of given type his capacity intellectual possessed norma[l] Following aggravation/mitigation apparently since has lacked which he hearing, Hilliard —as the sole sen- birth.” Hurles to death on Oc- tencer —sentenced 13, affecting judgment, The Arizona Supreme In his tober addition State v. appeal. his direct drug impact has also had on 'Court affirmed on abuse Hurles, 199, explained in his Ariz. 914 P.2d 1291 memory. Dr. Stonefeld evaluation that Hurles September memory problems “has with significant post- Hurles filed his first sequences. and time

large events gaps (“PCR”) on January conviction review largely peri- are related to episodes These claims, alleging including four both Indeed, Hurles would ods of intoxication.” ineffective of counsel claims assistance when inha- high lose time sometimes appeal. Judge again raised this Hilliard lants, reported Dr. Ben- including, as he PCR, presided over and Colleen sniffing time dheim in after “[o]ne French from the General’s Of- Buckeye found himself in paint he [when] attorney in fice-Judge prior days remembering how he two without proceeding represented the — got there.” PCR, State. Hilliard denied the pris- to his behavior outside Supreme contrast and the Arizona Court affirmed on, glowing from Hurles received reviews without comment. him prison closely staff who worked began proceed- federal habeas long his term with the Arizona during ings then returned but to state Department of Corrections. Staff de- court to a second PCR addi- raising file “very, very him “a compliant,” scribed claims, including judicial tional bias and very good worker” who da- “remember[ed] new ineffective assistance of counsel ily and whose “attendance was al- tasks” claims. requested He Hilliard’s re- ways good,” and someone who “was never moval and was from the case denied. “displayed out of control” and never then denied his second controlling ... problems temper.” PCR. Arizona Court af- numerous Richard received evaluations firmed without comment. describing prison from staff him as “excel- Hurles filed an amended for lent.” member spe- One staff commented Arizona, of corpus habeas in the District “Richard has cifically, demonstrated his raising ten The district claims. court de- function well while in ability prison.” most procedurally nied of them as barred. Windust, a Marilynn Program Correctional briefing, After additional the district court specializing Officer mental health and dismissed the remainder of Hurles’s primary substance abuse the Arizona claims. The district court then certified Department of Corrections while appeal four to this Court. issues there, imprisoned worked with Hurles that, daily years. for two She stated II. OF REVIEW STANDARD he had never dis- knowledge, received

ciplinary any difficulty infractions or had This Court reviews district deny § court’s a 28 U.S.C. 2254 complying prison programs. with Dr. Sto- decision to

1309 novo, Therefore, tutionally high. de Bribiesca we corpus petition reverse the habeas district court’s of (9th denial Hurles’s claim. Galaza, 1015, 215 F.3d 1018 Cir. v. 2000), of fact findings and its for clear A. Clearly Supreme Established error, Thompson, McClure v. 323 F.3d Precedent (9th Cir.2003). 1233, 1240 “A fair a fair tribunal is reviewing decisions the Arizona When requirement process.” basic due In re courts, Ef- the Anti-Terrorism and state Murchison, 133,136, 623, 349 U.S. 75 S.Ct. (“AED- Penalty Death Act 1996 fective (1955). Indeed, 99 L.Ed. 942 “legiti PA”) applies any petition filed after macy of the Branch ultimately Judicial de 2254; 24, § see also April 28 U.S.C. pends on reputation impartiality its Garceau, 202, 204, v. 538 U.S. and nonpartisanship.” Mistretta v. United Woodford States, 361, 407, 488 (2003); U.S. 109 S.Ct. 155 L.Ed.2d 363 (1989). 102 L.Ed.2d 714 This most basic 320, 336, Murphy, v. U.S. 117 Lindh 521 judicial system tenet of our helps to ensure (1997). 2059,138 481 S.Ct. L.Ed.2d Under litigants’ both public’s and the confidence AEDPA, may grant if federal court relief fairly adjudicated each case has been to, state court “was contrary decision by a neutral and detached arbiter. An of, application or involved unreasonable appearance of impropriety, regardless of law, clearly established Federal as deter- whether such is impropriety actually pres mined Court of the United proven, ent or erodes confidence and 2254(d)(1). § 28 U.S.C. In addi- States.” justice. system weakens our tion, may grant a federal court relief with judicial claims of While most bias respect findings to the factual of the state law, are “by statute, resolved common or if findings those were “based on an court professional standards of the bench of the unreasonable determination facts bar,” the Due Process Clause of the of the light presented evidence the State Fourteenth Amendment “establishes 2254(d)(2). § proceeding.” court 28 U.S.C. Bracy constitutional floor.” v. G'ramley, fact-finding process If the “state court’s 899, 904, 117 U.S. S.Ct. review,” this intrinsic its “findings survives (1997) (citations omitted). L.Ed.2d 97 To presumption dressed in a of correct- are safeguard trial, to a right fair 2254(e)(1). under Taylor ness” Section judicial Constitution requires recusal (9th Maddox, Cir.2004). 366 F.3d cases where probability “the actual bias part on the decisionmaker III. high constitutionally JUDICIAL BIAS is too to be tolerable.” Larkin, 35, 47, Withrow v. argues Petitioner the trial 43 L.Ed.2d “The have recused from his crimi- should herself Court asks not the judge whether is actu proceedings nal after became an active she biased, ally, subjectively but whether the interlocutory in his party appeal. Her average judge position likely his to be case, continued involvement he neutral, or is an whether there unconstitu contends, denied him due of law. potential Caperton tional for bias.” v. AT. the conduct the Given Co., 868, Massey U.S. Coal 556 129 S.Ct. proceeding, which the Arizona (2009) (inter 2252, 2262, 1208 173 L.Ed.2d Appeals omitted).3 of im- specifically Court deemed nal quotation marks The Su preme the bias proper, potential for was unconsti- Court has declared: bias, Supreme regarding judicial We Caperton, 3. cite to the recent decision Court's 1310 a that no defini- emphasized which offer has mechanical

Every procedure would exists; man “can- average requiring to tion cases recusal the possible temptation precision” proof the of not be defined with because judge forget to burden as a defendant, be relationships the and must required “[c]ircumstances to convict Lavoie, Id.; the 475 might him not to hold considered.” see also which lead (internal 822, clear, cita- nice, at 106 S.Ct. 1580 true between U.S. balance omitted). Supreme latter tions The Court has accused denies the state just approach. re-affirmed this functional process of law. due Caperton, at See 129 S.Ct. 2265-66. Ohio, 510, 532, 47 S.Ct. Tumey v. 273 U.S. (1927). 437, 71 L.Ed. 749 pragma call for The Court’s in particularly important is in this tism A need actu prove claimant not stance, for cases an even capital mandate process al to make out due violation. bias reliability” than other “greater degree of 212, 215, 403 Mississippi, v. U.S. Johnson Giarratano, Murray cases do. v. 492 U.S. (1971); 1778, Aet 29 L.Ed.2d 423 91 S.Ct. (1989); 1, 9, 2765, 109 S.Ct. 106 1 L.Ed.2d Lavoie, 813, Ins. v. 475 U.S. na Co. Life 280, Carolina, v. Woodson North 428 U.S. (1986). 1580, 825, 106 S.Ct. 89 L.Ed.2d 823 304, 2978, 49 96 S.Ct. L.Ed.2d 944 Indeed, pointed the Supreme Court has acknowledge are to “that compelled We nearly impossible that it be for out would penalty qualitatively of death is differ of litigant prove part to actual bias on the penalty ent” from other and that 2262-63; judge. at Caperton, S.Ct. “there is a in the corresponding difference 254, Hillery, also v. Vasquez see reliability for need determination (1986) 263, 617, S.Ct. L.Ed.2d 598 appropriate punishment.” death is the (“[W]hen discovered Woodson, 305, at 428 U.S. 96 S.Ct. 2978. rendering have had some basis for a bi Court, required Supreme As we judgment, actual are ased motivations approach therefore utilize a functional view, presume hidden from and we must they the facts case as this relate impaired.” (citing Tumey, Court’s established case law. 437).) at 273 U.S. 47 S.Ct. It is for precedents this reason that the Court’s Supreme judicial The Court’s bias judicial bias on the appearance focus it doctrine has evolved as confronts new bias, actual, potential proven “which, matter, an objective scenarios as Due process bias. thus a “strin mandates require Caperton, recusal.” 129 S.Ct. at conduct, gent judicial rule” and re 2259. The most basic example probable judges quires recusal even of “who would “ direct, occurs bias when ‘has very weigh their do best the scales personal, pecuniary interest substantial if justice equally” the risk of is too bias reaching against conclusion [one Murchison, high. 349 U.S. at ” Galaza, litigants].’ Crater 491 F.3d (9th Cir.2007) Tumey, (quoting 437). In determining what a risk of constitutes 273 U.S. Court that is high,” Supreme bias “too Court also that other financial has held interests throughout opinion. Although, analysis Supreme as find its of established Court out, points controlling Caperton dissent is not jurisprudence helpful to our resolution "clearly insofar it announces new estab- Caperton case. We no new read announce precedent” post- lished analysis rule of law that would affect our here, dates state court decision at issue here. we we dissent 1329 n. refer to it where

1311 recusal, they comment, when are claim may mandate even without “look we [they] ap- or positive not “as direct that through” opinion the last reasoned [Tumey be in Ber- peared decision, ].” Gibson v. Judge Hilliard’s denial 564, 579, 1689, ryhill, 411 U.S. 93 S.Ct. 36 Hurles’s second PCR. Ylst v. Nunnemalc- (1973); 488 see also v. Mon- er, L.Ed.2d Ward 797, 806, 2590, 111 501 U.S. S.Ct. 115 roeville, 57, 80, 409 U.S. 93 34 S.Ct. L.Ed.2d 706 Ordinarily, the state (1972); Lavoie, 813, 267 L.Ed.2d 475 U.S. factual findings court’s would be entitled to However, 106 financial con- presumption of correctness AED- under only interest are flicts of relevant 2254(e)(1). However, § PA. 28 U.S.C. judicial purposes. conflicts for bias See only such deference is if warranted Caperton, (explaining 129 S.Ct. at 2260 fact-finding state court’s process survives judicial that bias doctrine “a encompasses 2254(d)(2). the intrinsic review of Section general concept more interests Maddox, 992, Taylor See v. 366 F.3d 1000 disregard tempt adjudicators to neutrali- (9th Cir.2004). words, In other state ty”). required Court has thus recusal The court decision must not be on an “based if “becomes ‘embroiled a run- unreasonable determination of the facts.” ” ning, controversy’ with bitter one of 2254(d)(2). § 28 U.S.C. litigants, (quoting Mayberry id. at 2262 v. case, In this court fact-finding state 455, 465, Pennsylvania, 400 U.S. 91 S.Ct. process fundamentally Judge flawed. 499, (1971)); 27 L.Ed.2d if be- 532 she granted no evidentiary hearing or involving comes “enmeshed in matters [a other opportunity develop for Hurles to his litigant],” Johnson Mississippi, v. 403 U.S. alleged claim. Hurles had Hil- 1778, 215, 91 S.Ct. 29 423 L.Ed.2d improperly spe- liard was involved in the (1971); “if acts as ‘part of cial action proceeding before Arizona ” Crater, process,’ accusatory 491 F.3d Appeals, Court of which Murchison, (quoting U.S. at appealed her denial of his request for addi- 623). bottom, then, 75 S.Ct. At the Court above, tional counsel. As discussed has found due violation when responsive Hilliard filed a pleading roles, judge holds two irreconcilable such counsel, through her the Arizona impartial that her role as an arbiter could Office, arguing General’s of her merits Murchison, compromised. become alleged decision. Hurles that statements 623; Crater, U.S. at see also in Judge Hilliard’s brief were attributable 491 F.3d at 1131. her, inap- that the brief contained propriate about statements the merits of B. AEDPA Deference competence Hurles’s case and his AEDPA applies claim attorney begun. before trial had ar- He “adjudicated on the merits” a state gued involvement court, 2254(d), § 28 U.S.C. meaning the special Ap- action—which the Court of state court decision “rest[ed] on substan peals improper had found —rendered tive, procedural, rather than grounds.” unfit to continue presiding over his trial (9th Blodgett, Lambert v. 393 F.3d and sentence and that she should have Cir.2004). applicable state court deci recused herself. sion is the “last ad reasoned decision” dressing providing a claim. Instead of forum Fleming, Barker for Hurles (9th Cir.2005) (citations present F.3d develop evidence to estab- omitted). claim, Because the Arizona lish Hilliard “found” facts summarily appeal denied Hurles’s based on her own factual recollections and

1312 holding hearing giving and ings con- without a conduct. She about her assertions evi- opportunity present fact involved in an to petitioner not in that she was cluded dence, the in an findings clearly result proceeding, Action such Special the brief, her in her name was not the filed ‘unreasonable determination brief Rosario, not in the brief could ”); that statements 459 see also Perez v. facts.’ effect, (9th testi- Cir.2006) (“In to In she many her. 943, be attributed 950 F.3d denying through her order circumstances, fied a state court’s determina- relief. post-conviction for second evidentiary facts without an tion 2002, 9, 2, Entry, Aug. Minute See a of unrea- hearing presumption creates Schriro, No. CIV-00-0118- Hurles v. sonableness.”) (citations omitted); Nunes (D.Ariz. PHX-RCB, 2008 4446691 WL (9th Mueller, 1045, 350 F.3d 1055 Cir. v. (“Minute Entry”) 2008), cert, 72-1 ECF at 19 denied, 1038,125 2003), 543 S.Ct. U.S. (“[T]he Attorney response a General filed (“[W]ith (2004) 808, the 160 L.Ed.2d 605 any spe- judge’s behalf but without on this an having [petitioner] state court refused No pleading. a cific authorization of such evidentiary hearing, not of course we need judge with the made this contact was findings— to the state factual defer court’s judge was a Attorney General and this findings if that is indeed how those stated op- Hurles had no party only.”). nominal they were be characterized —when should challenge Judge portunity a v. hearing.”); made without such Killian understanding of memory claimed own (9th Cir.2002), Poole, 1204, F.3d 282 1208 years prior. place had taken events which cert, 992, denied, 1179, 537 123 U.S. inherently inadequate procedure This (2003) (“Having 927 refused 154 L.Ed.2d Petitioner’s claim. evaluate merits of on the evidentiary hearing an [petitioner] fact, all. See it is not In procedure matter, argue the state cannot now Murchison, 138, re normal AEDPA is owed deference (“Thus (1955) judge L.Ed. 942 [state] determinations factual impartial process requires to be whom due courts.”); v. 197 F.3d Thompson, Weaver weighing presented the evidence before (9th Cir.1999) (finding no defer- knowledge him, personal on his called own findings where factual ence warranted impression of had occurred in what subject judi- of the usual “were jury judgment grand room and his was accura- procedures designed cial to ensure on the accu- part impression, based not under cy” because “[t]he racy not be tested ade- of which could letter, the bailiff when he wrote the oath cross-examination.”); quate Buffalo relaying her not under oath when Cir.1988) (9th Sunn, F.2d judge, of events to and neither account (finding error when the court relied on ques- nor bailiff was ever disputed “personal knowledge” resolve side”); by counsel for either tioned cf. fact). issue of Kerby, 39 1479 n. Fero v. F.3d Cir.1994) (“[Petitioner] (10th the is- raised repeatedly have held that We post-trial bias judicial in his first sue findings a state court makes factual where new trial and had benefit motion evidentiary hearing an or other without claim.”). evidentiary hearing an present opportunity petitioner compel- presents especially case evidence, This fact-finding process “the itself is fact-finding example of defective ling and not entitled to deference. deficient” by Judge Maddox, (“If, where facts “found” process, for exam 366 F.3d at 1001 involved her conduct and evidentiary court find- Hilliard own ple, state makes at argument were based on her own untested oral that “findings” noted the Judge involved, memory and assertions. was not but there was no other to that evidence effect and the brief was re- suggests The dissent we are Judge’s Hurles, filed the name. See as casting legal disputes factual ones 2 & n. 2. P.2d at AEDPA. escape the constraints of order Thus, appears while the dissent to char- However, we are bound confront factual Judge acterize Hilliard’s decision as solely Hil- disputes Judge relevant to this claim. legal undisputed determination based on resolution of Hurles’s due liard’s facts, (factual) Judge Hilliard’s own rea- predominantly was a factual one. claim soning belies that characterization of this did not her in the participation She review Indeed, case. she clarifies her order action and in her special statements the defect Hurles’s due process they and conclude that did not consti- brief claim a sufficient is lack of “factual evi- bias, a potential tute nor did she review support allegations,” dence to but she Appeals’s Arizona Court of decision then fails afford him a hearing or other and conclude that it indicated no unconsti- opportunity to such develop factual evi- Rather, potential tutional for bias. she Entry dence. Minute 2. The dissent that, facts supplied judg- additional her Judge relies on own description Hilliard’s ment, proper rendered her conduct events, which were not tested or chal- prevented being briefs contents from lenged through cross-examination, in its Entry attributable to her. See Minute at 2 description of the relevant facts. See Dis- (“In case, action in this Thus, sent at 1332. the dissent adopts one Attorney filed a response General on this disputed view of the facts issue here and judge’s behalf but without any specific they undisputed.4 then claims are con- pleading. authorization such No always Judge has contested Hilliard’s ver- was made this judge tact with the sion of the facts determination Attorney General and this judge was that she was not involved added). party only.”) (emphasis nominal action proceeding. of these None facts established contrary, Moreover, To the record. Hurles contend- presid- Hilliard herself “injected [her- ed Hilliard had ed proceedings, over collateral evalu- adversary” as direct ating ]self Hurles’s claims regarding her own action, that she “filed her own alleged during substantive misconduct trial and sen- response” in proceeding, that she knew While tencing. judges frequently consider briefing the contents of the in her contemporaneous filed motions recusal name, and that alleged those contents were there- their based on own conflicts of interest, fore attributable to her. The Arizona Court has noted the Appeals explicitly inherently problematic noted that the nature of reviewing as Hilli- ambiguous record such inquiries. Caperton See v. A.T. Mas- involvement; Co., sey ard’s General Coal suggest 4. The dissent that a proffer also seems to must some set of facts that indicate an judicial appearance based bias claim on potential unconstitutional for bias. Hurles present could question, bias never a factual by laying does so out the facts which he acknowledged and that Hurles much. has potential contends indicate a for bias and However, Dissent at 1332 n. test that the unequivocally arguing that appearance of bias rather than bias actual opinion was based on an unreasonable deter- support need does obviate the for facts to mination facts. Indeed, judicial one's claim. all bias claims court’s these flaws state (“[Without (2009) Based 2263, 173 L.Ed.2d the state we find fact-finding process, adequate may be no rules,] there objective in an “unreasonable simply resulted decision judge who court against protection not enti- mo- and is real of facts” the the misapprehends determination or misreads under the case. of correctness deciding presumption tled to at work tives bias, then, Maddox, at 999 actual 366 F.3d inquiry into See own AEDPA. judge’s “ easily superin- ‘unrea- can application the law that that (explaining is not one however, review____”). note, appropri- We or clause” tend determination’ sonable un- particularly presents process case that this in which “the ate to situations Typical- defective”) scenario. problematic and usual court is by the state employed their of conflicts considerations ly, judges’ omitted). turn to (citations therefore We of in the context place take interest of claim. judicial bias Hurles’s consider be- motions for recusal contemporaneous oc- proceedings biased allegedly

fore the Claim Bias the Judicial The Merits C. of circumstance, judge is the In curred. problems case, three at least this harm a future prevent merely asked for bias potential unconstitutional raise Ohio, see, Tumey v. e.g., occurring, from as the sole later Judge Hilliard’s role given L.Ed. 510, 515, 71 273 U.S. (1) un- her sentence: of arbiter Hurles’s charged sim- (1927), judge is and the 749 participation improper and necessary whether failure determining ply with ruling own action to defend her for bias. potential create a recuse could (2) defendant5; troubling her against contrast, provided Hilliard Here, Judge of his case simplicity about comments con- for her own justification post-hoc guilt of overwhelming evidence and the that she allegations response duct had witness single before a made that she vio- improperly and already behaved (3) testified; question- comments and her pos- unusual rights. This lated Hurles’s attorney. competence of Hurles’s ing the rou- case from the distinguishes this ture point to unique facts together, these Taken dissent, by the cited dissent examples tine Hil- Judge overarching conclusion that 1332-33, about and raises concerns at that of incompatible roles: two held liard impartially ability to determine Therefore, adversary. arbiter essence, has, violated she whether required recusal was Murchison, Judge 75 at 349 U.S. law. See right due protect Hurles’s (“[N]o in his order man be 623 can S.Ct. to a fair trial.6 ”). own case.... state court last reasoned on the is focused Appeals Court of found

5. The Arizona decision, Judge denial of Hilliard's which is charac- improper and Judge’s to be conduct petition. post-conviction second state Hurles’s in a type of intervention terized 797, 803, Nunnemaker, 501 U.S. v.Ylst indicating as one proceeding (1991). There- 115 L.Ed.2d role. her neutral judge has trial abandoned fore, Ballinger's is not the Judge decision Court, Superior 174 Ariz. See Hurles Second, Judge reviewing. we are decision (internal quotations (App.1993) P.2d four-sentence, minute Ballinger's unreasoned omitted). purport the merits to rule on does not order (or his judicial bias claim another emphasizes fact that 6. The dissent relief); rath- post-conviction claims for Ballinger, judge, other reviewed trial court for a er, simply Hurles's motion it denies to recuse Hurles’s motion and denied It contains no cause. change of peti- his presiding over second from at issue applicable law analysis facts post-conviction review. Dissent tion for case, pronouncement as AEDPA, no First, makes review our & n. 16. under Respondent highlights fact has raised ineffective assistance of counsel judicial that Hurles did not raise his bias to both regard claims trial his (either claim or on direct sooner appellate counsel. We do not reach or Ap that the Arizona Court appeal) and judicial decide these claims because the not peals did seek Hilliard’s recusal bias claim is dispositive, but we hesitate to denying in the aftermath of its decision persuasive weight lend to the fact that he standing in the special action. We did raise judicial bias claim while unpersuasive arguments find these for sev represented by attorneys. those First, eral reasons. extent that the respondent procedural argument raises a Hilliard’s Adversarial Role regarding timing judicial of Hurles’s injected Hilliard herself claim, it No party bias is meritless. has special into a action proceeding in which directly argued that Hurles ex failed to appealed Hurles denial request her of his haust or has otherwise waived or defaulted argued additional counsel and that she judicial on his bias claim. The Arizona abused her discretion. As noted Court find Superior did not consider or above, while special action proceedings in any procedural problems with Hurles’s require Arizona the trial judge to be claim; rather, the court reached the merits as named the nominal respondent, this is of Mr. Hurles’s claim and it denied typically a formality mere and does not Indeed, merits. the claim was exhausted any warrant response partic or active “one through complete round of the State’s by Hurles, ipation the judge. P.2d at process,” review established the state case, however, 2. In this Judge Hilliard merits, court denied the claim on the it and responsive filed a pleading through her is us. properly now before O’Sullivan counsel, the Arizona General’s

Boerckel, 838, 845, 526 U.S. Office, arguing the merits of her decision. L.Ed.2d The Arizona of Appeals Court issued a addition, whether Hurles would published opinion denying judge’s better seeking Judge have been served standing to in appear the special action earlier, recusal or Hilliard’s whether finding responsive that her pleading Appeals Arizona Court of should have improper. 4. Specifically, Id. at recusal, sought not our her does control may court held that judges respon- not file current evaluation of the claim. bur pleadings special sive in action proceedings herself, den the judge disqualify is on solely make “I-ruled-correctly” argu- party even if a never seeks recusal. See conduct, found, ments. Id. Such the court Rules, 17A Ariz.Rev.Stat. Sup.Ct. Rule transformed the role that from of (“A 2.11(A) Conduct, Code of Rule Jud. an impartial arbiter to that of an adver- judge disqualify shall himself herself sary. Specifically, the court characterized any proceeding judge’s impar which the this kind of intervention as follows: tiality might reasonably questioned.”) be added); also, (emphasis e.g., see trial judge, impartial dispens- 28 U.S.C. [T]he 455(a) (same). Furthermore, § justice er of ... appel- stands before the deed, any appellate

to the merits of Hurles’s generally) pre- claims. Final- more review ly, differently that one in a has ruled supposes judgments against numerous earlier particular persuasive case is itself petitioner. Our role is to wheth- determine where, here, specific ruling case prior er those decisions should under stand order) (Judge Ballinger's issue is not entitled governing law. (and deference. in- Habeas review argues and his The dissent we overstate ruling to defend his late tribunal Appeals’s characteriza- longer Arizona Court of judge is no The trial honor. participation Hilliard’s an tion of adversary an He is impartial. rather, ac- “improper”; action as advocate. dissent, “merely cording court City ex Dean v. (quoting at 3 State rel. Id. authority two competing resolved lines Court, 598 P.2d 123 Ariz. that a lacks and determined that her court thus ruled (App.1979)). The specific in a standing ruling to defend it threat- because improper conduct was Dissent at proceeding.” impartial ... “principle essential ened reading This a strained is judges person- “no adjudication,” that have deci- Appeals’s opinion. That its justiciable surely no stake— al stake—and strong rebuke important sion was ultimately affirmed or they in whether are judicial participation active original). (emphasis reversed.” Id. from apparent actions contin- Despite ruling, Entry later statement Minute uni- preside over Hurles’s trial and ued to no file an re- “judges longer ‘improper’ af- laterally his death sentence determined special in actions the court’s sponse since he was ter convicted.7 in Superior decision Hurles v. Court.” Indeed, Ari- Entry Minute at 3. even the that argues Judge Respondent Office, rep- zona which General’s party special a mere nominal in the was Hilliard in ac- Judge special resented the However, the Ari- proceedings. action tion, Appeals’s that the Court of conceded specifi- Appeals’s zona Court of decision the opinion protecting was concerned with cally judges drew a distinction between impartiality judicial proceedings that of parties “nominal” who as behave by participation as was threatened such who, re- those the fact that no despite Judge Opp. to Re- Hilliard’s. See to Mot. or is none- sponse appearance required, Schriro, at v. cuse No. CIY-00- appear arguments theless and submit (D.Ariz.2008), 72-6 0118-PHX-RCB ECF their own then deter- behalf. court (“The Appeals] at Court of [Arizona that, category mined within the of improper judge that ... it held of re- parties, more active some kinds Judge Hilliard The court did].... as [act (those ad- sponses proper are based on judge responded that to a reasoned when policy-based arguments) ministrative action and claimed that he or she special (those some that improper are defend correctly, placed ruled it at judge’s against petition- decision special iuho party odds filed claim). Thus, at of er’s Id. the Court action, might perception which affect Appeals Judge that Hilliard was found (em- impartiality proceedings.”) of neither a nominal nor an party, standard omitted). added) (internal phasis citations Instead, it appropriate party. active agreed Respondent argues regardless with the Dean court’s assessment classify Judge partic- Hilliard’s we participation such how special in the the trial we not ipation, action transformed should consider statements adversary responsive into pleading “an and an advo- to be state- However, judge. cate.” Id. while at 3. ments 584, 596-97, 536 U.S. S.Ct system allowing judges 7. Arizona’s to deliv- jury death since er sentences without a has L.Ed.2d 556 Arizona, Ring held been unconstitutional. Judge Hilliard recalls that she not every other scenario. Whether Hil- involved, French, counsel, Colleen her con- liard actually herself wrote the language in ceded otherwise. a brief filed with the her action brief is irrelevant. She district court federal habeas was the respondent and the brief was filed proceedings, stated, Ms. French name; “Under- her statements in the brief are signed Counsel’s communications with the therefore attributable to her. need We Trial during pro- action inquire further into her subjective ceedings cannot be construed to have mind, been state of especially given the parte ex because Undersigned Appeals’s Counsel treatment of the issue as a represented the Trial at the pleading time Hurles, filed her. 849 P.2d at 4 they (“We occurred.” Response to Pet.’s Mot. come question then to the which sort to Disqualify Schriro, Hurles v. No. of pleading the responding judge has of- (D.Ariz.2008), case.”) CIV-00-0118-PHX-RCB added). in this (emphasis fered Thus, ECF 27. of personal level in- Second, petitions for review in the Ari- is, volvement best, zona Supreme Court challenging the Court contested. of Appeals’s decision in the special action Even accept Judge if we Hilliard’s aver- refer to the Judge’s responsive pleading ment that she had no direct involvement with the presumption they are her action, the special however, we still may arguments, just as the statements coun- properly attribute statements the brief sel always are the statements of the client. to her for at least two First, reasons. the The presiding criminal judge of the Mari- responsive pleading copa County Superior Court, Ronald S. name, as stated in the introduction.8 Reinstein, This petitioned special for a action to statement is no different from the lan- the Arizona Supreme Court following the guage by used counsel for Hurles.9 The Court of Appeals’s ruling in Hurles Su- presumption that statements in perior one’s name Court in to order defend are statements of that person logical is a ability to appear in such proceedings. See one, and there is no reliable evidence in Action, Pet. Special for CV-93-0135-SA the record that 20, 1993). demonstrates (Apr. otherwise.10 In that petition, Judge The Judge also received copies of the Reinstein referred the pleadings to briefing and therefore had an opportunity special “Judge action as object to any to statements made response,” on her id. at and highlighted the behalf, which the record indicates did she direct participation judges in defending not do. why It is unclear statements of a their rulings policies or special in action client’s attorney should not be imputed to proceedings. Judge Reinstein’s petition the in instance, this client as they are makes no distinction between the Hilliard, "Respondent Judge 8. through her referring simply to the brief as "submitted in attorneys undersigned, hereby enters re- her Judge Hilliard's name” and without her in- sponse special to Petitioner’s for ac- volvement. Dissent linguistic at 1332. This Response Action, tion.” Special to Pet. strategy merely highlights key dis- factual (Mar. 1, 1993). CV-93-0046-SA pute in this case: whether and how much Judge Hilliard was special involved in the “Petitioner, Hurles, 9. by Richard through The action. dissent and counsel, Hilliard re- undersigned his respectfully petitions dispute by solve this pointing Action, Hilli- Special Court----” Pet. for CV- (Feb. 18, 1993). 93-0046-SA ard’s factual testimony submitted in min- entry. ute attempts The dissent to distance Hil- liard proceeding from action his client, may be evidence assembled demonstrate repre- who any other murder.” guilt for the “brutal While but is nonetheless counsel sented make a legal or her would need to determination directly through his speaking needed as counsel is argues also to whether additional Judge Reinstein pleadings. of a appear by evaluating complexity the relative not able to if are judges case, it is manner like here which Hurles’s—actions special actions “sim- standing dismissed Hurles’s case as ap- has no the state which problematic. than dis- ple” that is Rather “completely would pear proceeding —the cussing simplicity Id. at 4. the case quality.” its adversarial lose[] perci- of expert criminal reference to number or Superior presiding Court’s The pient pre- in this that would need to be judges type of witnesses judge thus assumed case pared, days the number of trial par- indeed adversaries posture are for, call likely or other content-neu- appeal. would ty bringing the factors, Judge tral Hilliard referred to the General, Attorney Grant The Arizona “simple” case state had because the Woods, Arizona petitioned the Su- also already purportedly amassed overwhelm- following action preme Court for ing guilt against evidence the defendant. ruling, seeking to Appeals’s the Court of She writes: whether Attor- have the court decide in- point The State’s evidence rep- continue to ney General’s Office could cludes, but not limited to the follow- proceedings judges resent eyewitness indicating ing: statements potential the court’s concern over given running Petitioner seen from Special of interest. Pet. Ac- conflicts Buckeye library after a witness saw CV-93-0134-SA, tion, (Apr. at 5-6 bleeding profusely woman inside 1993). if petition argues library building, locked Petitioner’s represent cannot judges, General statement brother that he had they appear would have themselves the library, stabbed someone Petition- presumes This private hire counsel. Id. pants er’s shirt stained with blood attorney-client relationship standard victim’s, type PGM as the Peti- the same client, the the primary which actor is at footprint tioner’s in the victim’s blood Hilliard, General, Judge not the scene, fact the and the that books re- Therefore, we conclude that counsel. turned in the slot at Petitioner return brief properly statements in the are attrib- library place him at a[t] the the scene utable to Judge Hilliard.

time of the the murder.

2. Statements About the Case description only to conclu- This leads one Hilliard, According Judge sion. to the of Judge In addition the fact simple obviously he case was because Hilliard’s itself participation, the brief con guilty. troubling tains numerous statements about pro- the merits of Hurles’s case. These The dissent’s contention that state with, familiarity ceeding ments an of the evi- display pre and “involved evaluation of, determining for judgment long only purposes of his dence facts case any necessary” actually pre before evidence whether a second counsel was been Judge sented. brief assumes the it to draw. describes conclusion wishes case, concluding Judge at Hilliard’s anal- nature Hurles’s Dissent 1329-30. from, “very simple ysis it straightfor quite example, that was and different ward,” whelming with an over amount of detached determination the case was require very Judges opinions it little are free to form simple because would fact, presented In on such neu- based on evidence preparation. witness same measures, simple the case was not cases involving litigant tral or earlier acknowledged that the question offending all. Hilliard without notions of due Galaza, “22 already listed witnesses process. State had See Crater 491 F.3d (9th Cir.2007) at trial” and that the defense (finding be called 1130-32 no list was at that time unknown. witness due violation where the charac- attempted Hilliard opinions guilty While as the likelihood of a required evidence against terize scientific verdict defendant was based on minimal, by earlier, her own admission there presented evidence now com minimum, blood, be, fingerprint, at a plete, proceeding against would his co-defendant addition, incident). footprint analysis. case, she and for the same In this howev solely guilt-phase er, evidence judge’s opinions focuses were long formed sentencing process, mention of the without before trial and before evidence had justifica- Indeed, of Hurles’s counsel’s chief presented. one been the brief pre requesting additional counsel. As tions for sumes that the State’s amassed evidence is competency unassailable, evaluations subsequent virtually if there were trial and testimony sentencing evidence, flaws the scientific then the showed, personal family required time to prepare vigorous de background required investiga- extensive fense would be much more significant than alleged mitigating tion into a multitude of suggests.11 Hilliard Hilli Moreover, gives she short shrift factors. prejudg ard’s statements thus indicate a investigation to the need for extensive on ment of the case against Hurles months attorney prepare part and, of Hurles’s preside before she would over his trial defense, including alleged legal later, bases for unilaterally sentence him to death Indeed, insanity. the evidence adjudicate amassed post-conviction claims prosecution posed significant chal- for relief. lenges prosecu- for the defense. That the appeared strong tion to have a case for 3. Statements About Hurles’s Counsel guilt job does not render the defense’s Finally, Judge challenged contrary, To “simpler.” easier or the professionalism attorney, of Hurles’s has, prosecution more evidence the credibility whose important would later be challenging more it would be for the de- sole during as Hurles’s counsel the trial Therefore, put good fense to on a case. sentencing proceedings. argued She refer- Judge Hilliard could have been attorney’s insecurity over han “simple” any techni-

ring to the case as dling placed the case on her own her com plausible reading cal sense. There is no of petence in doubt. Hilliard stated: Judge Hilliard’s statements other than believes, foregone Appointed [I]f that the case’s resolution was Counsel because caseload, personal of competence, conclusion. her any equivoca- "placets] him at the a[t] Hilliard’s brief lacks evidence scene purported language strength of the State's time of the murder.” This leaves no tion as to the example, eyewitnesses findings evidence. For do not doubt as to what the factual should case, "allege” though many "claim” or to have seen Hurles at be in Hurles's even library, they pass any but rather "indicate” that he months would before evidence library. Similarly, actually presented be was indeed at the Hurles’s would court and be blood," "footprint subject to cross-examination. in the victim's [was] 1320

otherwise, incapable relating of ren- to his conduct that she before the representation” judge grand jury. in that In re dering “competent Murchi- son, Petitioner, 133, 137, ethically she is bound 349 U.S. 75 S.Ct. 99 (1955). case, and, quite pos- L.Ed. 942 The Court determined withdraw from sibly, her name from the “the had a conflict of interest at withdraw lawyers provide stage partic- who contract to the trial because of his earlier list of Maricopa ipation on behalf of followed to charge defense services decision Co., are A.T. County Clearly Caperton Massey as well. there other them.” v. Coal 2252, 2261, attorneys provide contract services 556 U.S. 129 who S.Ct. 173 (2009) County who would be able L.Ed.2d 1208 Maricopa (describing the hold- Murchison). provide competent representation ing Similarly, Johnson simple Mississippi, a case as as this. the Court evaluated a judge’s to preside petition- fitness over the entirely to the point superfluous This criminal contempt proceeding. er’s designed merely to appears brief and 212, 215, L.Ed.2d attorney question competence (1971). previously been who determined she needed assistance in a separate named as a defendant in a civil Indeed, in capital ques- case. addition to rights brought by suit petitioner, tioning competence particular in this subsequently “intemperate made remarks” case, prospect the brief even raises the rights about civil litigants. Id. Based on attorney longer that this should no receive adversary status as an County from gainful employment Maricopa petitioner’s rights civil suit and his re- if “personal compe- she did not have the litigants marks about petition- such as the having ques- tence” to do so. After raised er, the Court determined that he was too only legal tions about counsel in “enmeshed in involving peti- matters [the] pleadings Appeals, to the Arizona Court of preside tioner” to contempt pro- over his responsibility Hilliard then had sole ceeding. Id. credibility determining mitigat- ing presented by attorney. evidence Johnson, inAs Murchison and here the together with Taken her comments about Judge’s conflict of interest the trial and case, the merits of Hurles’s such direct sentencing stages arose from her “earlier prejudgment raises an unconstitutional participation” as a direct party spe- probability of bias. proceeding. cial action Caperton, 129 í¡: % ^5 S.Ct. at 2261. The Murchison Court dis-

Based on tinguished these three deficiencies flow- these circumstances from one in ing from proceeding, the which a judge simply responded to conduct Murchison, “average” judge would tempted open be “not to court. 349 U.S. nice, clear, hold the balance and true.” Similarly, Judge S.Ct. 623. Hilli- Ohio, 510, 532, Tumey v. 273 U.S. ard’s initial denial of the motion for addi- L.Ed. 749 tional counsel is not the basis for claim bias, parameters conduct falls within the of be- nor was her status as a nominal prohibited by clearly respondent Rather, havior in special established the action. Murchison, Supreme precedent. it participation spe- was direct the for example, appear- the Court found an cial action that “part made her of the judge accusatory ance of bias process” where the who had and rendered her ine- acted a grand jury” ligible preside “one-man later to over the remainder of presided over the defendant’s contempt Hurles’s case. Id.

1321 827, attempts distinguish Meyer, to ed States v. 462 F.2d The dissent 842 (D.C.Cir.1972) added) (“Thus, Judge (emphasis and Johnson because Murchison (a) ancillary in an only party was judge, by the trial virtue of his status as a itself, than in the trial proceeding, rather in a brought alleged suit the defendant (b) role” in “prosecutorial did not assume contemnor, adversary posture was an (c) case, not appear and did to Hurles’s him, respect presumptive- with and was animus” towards Hurles. “personal have ly though biased. This is true even This misconstrues the Dissent at 1329-30. adversary party status as an First, of the at two cases. the sources bias alleged created an action of the contem- in both Murchison and Johnson issue suit).... ”). (filing nor Judge Whether Id.; pretrial proceedings. separate were plaintiff Hilliard was a or defendant in the Johnson, 215, 403 91 S.Ct. 1778. U.S. irrelevant; action at issue is thus what Supreme have also construed Other courts posture matters is her adversarial toward apply broadly law to more Court case Hurles. See, e.g., as a whole. United Finally, Court has never Meyer, 462 F.2d States v. required evidence of “personal animus” in (D.C.Cir.1972) necessity (describing for re- judicial order demonstrate bias. adopted “has an judge cusal when the Though Johnson Court made note of respect with to the al- adversary posture judge’s “intemperate remarks ... con- contemnor, leged as Murchison and Johnson, cerning rights litigants,” civil ”). Johnson grounded it its Second, the fact that Hurles initiated the holding judge the fact that and Hilli- special proceeding action previously adversary peti- been an in the prosecutorial have a role ard did not direct rights comports tioner’s civil suit. This Indeed, we find no au- import. is of no rule, longstanding with Court’s which that thority proposition for the whether that a recognizes, petitioner the dissent judge affirmatively creates the conflict de- need not demonstrate actual bias in order can proceed impar- termines whether she Caperton, to succeed on his claim. See tially. judge Johnson itself involved who Moreover, S.Ct. at 2262-63. as discussed in the had been named as defendant above, Judge inappro- Hilliard also made Johnson, rights civil suit. petitioner’s brief, in her priate response statements U.S. at 91 S.Ct. 1778. Murchison suggested pre- statements which she had likewise does not state that the must judged strength of Hurles’s case. instigator the initiator or of the accusa- be happened That Johnson to involve more tory process; it states instead that she personal direct evidence animus does if “part” must recuse herself she becomes inapplicable not render it here. accusatory process. A defendant Respondent’s position Hilli- part such as Hilliard is still action, “prevailed” ard that she process to the extent had no therefore incentive to be biased adversary and then Hurles, against misleading log- is both over proceeded preside ically Ap- unsound. While the Court of single-handedly determine his sen- Lockhart, peals jurisdiction declined to exercise over tence. See also Smith v. (8th Cir.1991) (find- action, it sided F.2d 1322 n. holding Hurles in Hilliard had ing disqualified should have standing appear no as more than a because he had been “a defendant himself suit”); case, respondent nominal or in in Smith’s federal class action Unit- Superi- judges longer v. no occur in posture with the Hurles the wake of case fact, an Thus, In the court issued Superior or Court. Hurles v. Court. fac- this impropriety out the opinion solely point a past practice tual scenario is relic of prece- actions and to set a judge’s of the courts, Arizona rare even at the time and any future involvement of against dent Second, today. particu- nonexistent in this in a action by that kind a case, question lar was the sole (“This Hurles, proceeding. 849 P.2d at sentence; arbiter of the defendant’s death a presents signif- action weighed she alone the evidence and deter- question standing, which icant threshold minéd that Hurles deserved to die. This address.”). Thus, publish we this order practice longer constitutionally per- is no subject opinion, Judge of the Hilli- on the Arizona, Ring missible the wake of v. all; rather, prevail ard did not she was 584, 597-98, 536 U.S. 122 S.Ct. “inappropriate” called out for conduct. Id. L.Ed.2d 556 proba- Indications of Moreover, depending at 4. on the circum- ble bias are thus all troubling the more proceeding, stances of the whether exceptional this, case such as and the “prevailed” would not necessar- consequences capital of an unfair sentenc- ily temptation alter her toward bias ing are irreversible. We must therefore case, against given the defendant. conclude that “[o]n these extreme facts the expressed by the the concern Court of probability of actual bias rises to an uncon- Appeals, Judge Hilliard had reason to be Caperton, stitutional level.” 129 S.Ct. at against independent biased Hurles fact that the court did not reach the merits denying of her order additional counsel. IV. CONCLUSION that it emphasize again highly We is the argument, At oral when counsel was of this case that compel unusual facts us to asked what relief she seeking for her right conclude Hurles was denied his claim, pursuant judicial client to his bias process. due As the Court has requested only she a noted, sentencing. new questions concerning “most Therefore, we remand to the district court qualifications to hear case are not ones, grant with instructions to constitutional the Due Pro- writ of habeas because corpus cess Clause of the Fourteenth Amendment as to Petitioner’s sentence unless floor, elects, establishes a constitutional not a uni- the State of Arizona days within 90 form Bracy Gramley, standard.” mandate, of the issuance of the to resen- 899, 904-05, 138 tence Petitioner jury presided before a (1997) (citations omitted). L.Ed.2d 97 We by judge Hilliard, over other than perfect deal here with a storm of rare within a reasonable time thereafter to be unlikely incidents that are to repeat them- determined the district court. Caperton, selves. Unlike in where the Because will receive a new sen- possibility Court had to contend with the and, tencing if necessary, a new appeal ruling that its would unleash a “flood of after his sentence has been determined motions,” presents recusal this case no jury, do not we reach or decide the danger. 2265; such Caperton, 129 S.Ct. at remainder of his appeal, claims on includ- (ar- (Scalia, J., see id. at 2274 dissenting) ing sentencing whether his appellate guing that the Court’s decision would lead ineffective, counsel were and whether he to a judicial drastic increase in litiga- bias defaulted on of those claims. tion). First, Hilliard herself out, pointed appearances by REVERSED and REMANDED. facts,” legal because it is a dissenting: nation of IKUTA, Judge, Circuit undisput- determination as to whether the a convict- majority overturns Today the give appearance rise to an ed facts bias. sentence, ignoring capital murderer’s ed majority nor the sug- Neither Hurles has to a state to defer AEDPA’s command gested legal how the state court’s conclu- objectively un- unless it is court’s decision objectively sion on this issue was based Taylor, 529 See Williams reasonable. fact-finding. unreasonable Because there 362, 407, 120 146 L.Ed.2d AEDPA avoiding no basis for deference is is analysis The AEDPA here here, grant we are not authorized to habe- During preliminary straightforward. 2254(d). respectfully § I dissent. as relief. trial, the state capital of Hurles’s phases ap- Hurles’s motion trial denied I attorney. Hurles pointment of second objective Because view of the facts that in a action appealed denial procedural history of Hurles’s case is state Gener- and the proceeding, understanding crucial to a correct in trial a brief al submitted briefly in I legal dispute, issues recount defending ruling. Over seven name sequence the relevant of events. later, after an unsuccessful direct years proceeding, appeal post-conviction A judge’s par- claimed that the trial

Hurles proceeding action ticipation The facts of Hurles’s crime form the process rights his due and moved violated backdrop dispute for the over whether participation for her recusal from further attorney, Hurles needed a second which is denied in his case. The at the heart of his habeas claim. The rejected motion and his claim Supreme provided Arizona the fol- Court participation pro- her lowing description: ceeding “ap- an unconstitutional created On the afternoon of November Hurles now claims pearance bias.” Buckeye public Hurles went to the contrary Supreme is this conclusion small, library, house-type building there is no precedent. Because Court neighborhood. only The em- residential authori- clearly established library at the time ployee hints the trial court’s decision ty even Kay patron, Blanton. The last other to its determi- wrong, we must defer Hurles, library just left the than before deny Murdoch v. petition. nation and p.m. 2:40 Hurles then locked the front Cir.2010) (9th Castro, 609 F.3d library doors to the and attacked Blan- (en banc). stripped ton in the back room. He off majority’s contrary pulled conclusion that her underwear and skirt The her waist in an at- grant it can avoid AEDPA deference and above unsuccessful 2254(d)(2)1 tempt rape Using paring § her. knife unsup- under library, back room of the court decision at issue found portable. state Blanton, mortally wounded stab- on an unreasonable determi- is not “based 2254(d)(2) adjudication proceedings unless the court 1. Section states: (2) of the claim— ... resulted in decision (d) application An for a writ of habeas cor- determi- person custody pursu- that was based on an unreasonable pus on behalf of a judgment light ant to the of a State court shall facts in of the evidence nation of the respect granted be claim proceeding. presented in the State court adjudicated that was on the merits State matching inflict- Police also found blood Blan- thirty-seven times and her bing shoes, ton’s on Hurles’ which he by kicking type force trauma ing blunt wearing liver. was still when taken from the he tore her an extent such bloody shoeprints Four bus. scene.] then fled [Hurles murder scene matched the soles of shoes, palm print Hurles’ and Hurles’ p.m., and 4:00 Hurles 3:00 Between on the at the paring was found knife left bicycle to the home [a borrowed] rode scene. Thomas, Buckeye in and nephew, his for a ride to Phoenix. Thomas asked great ... Blanton would have suffered changed his clothes and

Hurles had repeatedly by somewhat, terror as she was stabbed up and cleaned himself Hurles. She also must have suffered Thomas, asleep and was had been who great pain. In addition to the fifteen murder, agreed to of Blanton’s unaware hands, defensive stab wounds on her Phoenix. As the two drive Hurles to eight Blanton was stabbed times in the house, carrying left the Hurles head, torso, twelve times in the and the drive to During of clothes. bundle twice her lower extremities. She also Phoenix, Thomas noticed Hurles trauma suffered blunt consistent with on his wrist. When had bite marks kicking, which tore her liver. them, Hurles told Thomas asked about Spanish fight he had been in a with barrage of violence inflicted library, man at the that he had stabbed Blanton, fact that she was conscious knife, the man the man’s and attack, throughout struggle and her had received the bite marks he fight off all her attacker indicate she defense, insanity fight. part As of his terribly far suffered above the norm however, later claimed he had no Hurles murder, first-degree leaving of even no anything that occurred recollection room to doubt that this murder was library going sitting between especially cruel.

out the door. back (.Hurles II), State v. Hurles Ariz. Phoenix, they

As continued toward 1291,1293-94,1299 914 P.2d Hurles had so he could pull Thomas over B

toss the out the car bundle of clothes window. Thomas left Hurles at a Phoe- After mur- Hurles was indicted for this station, purchased nix bus where he a der, Maricopa County appointed private Vegas. ticket Thomas re- bus to Las him. represent defense counsel to ultimately he Buckeye, turned where parte appoint- made an ex motion for the police made contact with the and told ment of a second counsel to aid in his them of destination. Later that Hurles’ argued defense. He that he was entitled evening, police intercepted Hurles’ (1) attorney ato second because: the case way Vegas; on the bus to Las Hurles would “involve numerous civilian and law bus, arrested, was removed from the (2) witnesses”; enforcement the state and returned to Phoenix. experts testify regard- would have forensic help, police ing suspect

With Thomas’ recov- identification and sexual as- (3) sault; “[preparation possi- ered Hurles’ discarded clothes. Police for the found clothing penalty phase blood on the ble such a case will [be] type, consuming, complex matched which oc- itself a time process.” Blanton’s blood percent population. support arguments curs one To on the third California, [any] “there was contact between Judge rather Hurles cited point, Arizona, by the law. As later noted Hilliard and the than General’s office motion Appeals, pleading prepared.”3 Arizona Court Id. bare-bones, and attorney was for a second majority bases claim that Judge The its showing on particularized to make “a failed (if primarily Hilliard biased not solely) was counsel.” Hurles the need for second First, of this brief. on the contents the Court, Ariz. P.2d Superior majority contends that the brief demon- pos- no mention of It made (App.1993). Judge Hilliard’s view that “the strates case defenses, did not discuss the size of sible simple obviously because was [Hurles] was for either the pool witness the defense’s guilty.” Maj. op. majority’s at 1318. The specify and did not penalty phase, or guilt by objective reading claim is belied an forensic or other technical any additional above, explained the As brief. Hurles’s present the defense would on information appointment for a motion second coun- short, it no provided account. In its own question the put sel issue whether the which the upon factual basis substantial by complex case was too be handled one have concluded that a trial court could motion, attorney. ruling on the the attorney necessary for Hurles second obliged trial court had been to consider the adequate representation. to obtain complexity of the extent evidence like- trial court denied the After the state ly presented to be order rule on the special a request, Hurles filed for explained The motion. brief the basis for Appeals,2 in the Arizona Court of action In response the trial court’s decision. arguments pre- he had raising the same claim that a second Hurles’s counsel was motion. Per Arizona’s rules sented in his required high due to the number of wit- actions, Hurles named the State special for experts, nesses and forensic the brief not- Arizona, of the represented the office Maricopa County planned that to call ed Attorney, party as real Maricopa County witnesses, “relatively namely few” 10 law interest, Hilli- judge, Judge and the trial examiner, agents, the medical enforcement ard, 2. In respondent. a nominal Id. at as in- and several civilians.4 The State also Attorney response, the Arizona General present following physical tended to name, even filed a brief clothing, evidence: Hurles’s which was Appeals as the Arizona Court of though, type with blood of the same PGM noted, “stained it was not clear from the record victim’s,” footprint in the vic- had even authorized a as the name, library, “fact in her nor that blood and the pleading to be filed tim’s Howard, law, party. Fenton v. 118 Ariz. 2. Under Arizona the denial of motion attorney appointment is not County for second P.2d Because the immediately appealable, petitioner and so a position prosecutor, it could not take a ruling by filing of such a seeks review of defendant's counsel in the the selection special petition for action in the Arizona proceeding, which led state I, Appeals. at 1 See Hurles 849 P.2d Court Attorney step respond General to in to on the 1,n. I, judge's Hurles 849 P.2d at 1. behalf. explained that the 3. The General example, present 4.For the State intended to Maricopa County Supe- presiding eyewitness's ran statement that Hurles requested responsive pleading rior Buckeye library after a witness dis- from I, 849 P.2d at 4. Then- this case. floor, bleeding library Blanton on the covered precedent Arizona held that current action, well Hurles's statement to his brother as right appear in a library. merely than he had stabbed someone at though judge was a nominal even majority returned also [Hurles] books faults the brief for library place him at the return slot at the failing to consider “the need extensive scene the time of murder.” a[t] investigation” to address “alleged bas- legal insanity.” es Maj. op. at 1319. legal argument, Turning to Hurles’s action, But at the time of the that Hurles’s reliance on brief asserted attorney yet had not noticed precedent misplaced California be- (insanity otherwise), defenses rules, adopted cause Arizona had different Hurles did not argue the work in- procedures, Specifically, and time frames. prepare volved to an insanity defense was brief, according to the while California law a reason he needed a lawyer. second necessity of a second presumed the attor- cases, ney capital Arizona had no such Further,

presumption. refuting C prepare claim that the need to simultaneously guilt for the and penalty Before addressing the merits of spe- phases appointment mandated the of a sec- cial action petition, the Arizona Court of attorney, ond the brief noted that while Appeals determined that the case raised “a required sentencing begin California significant question threshold of standing” verdict, days gave within 20 Arizona gave that the court the chance to refine its capital days a after defendant 90 the ver- jurisprudence on “whether —or under what dict prepare sentencing, for as well as may circumstances —the trial court prop- option to seek an extension of that erly respond” to a special for ac- cause; good procedural time for these dif- I, tion. Hurles 849 P.2d at 1-2. The ferences concurrent preparation made court acknowledged that in the seminal phases urgent both far less Arizona case, Howard, Fenton v. the Arizona Su- than in Ariz. its sister state. R.Crim. P. preme Court had that “a judge held does Thus, majority’s 26.3. contention that right have the to appear and to repre- be gave the brief “short shrift” to Hurles’s special him, sented action against arguments, ignored or the sentencing judge where the is a named respondent,” phase and the special capital burdens of a 318, 118 Ariz. (1978), 575 P.2d and case, Maj. 1318-19, op. wrong. at decision, that a later appellate State ex rel. Tucson, City Dean v. Finally, the opined brief that 123 Ariz. defense 598 P.2d unsupported request (App.1979), counsel’s for co-coun- interpreted sel at such an early stage establishing of a case Fenton as “a involv- trial ing a fairly standard unequivocal right workload and flexible to respond to a system special action, specula- deadlines amounted to whatever the nature of the tion Hurles’s appointed counsel that decision the judge she seeks to defend.” I, would render ineffective assistance if she Hurles 849 P.2d at 3.6 Notwithstanding did not have co-counsel.5 precedent, this the court of appeals con- statement, majority 5. The judge makes much of this ruling to defend "his and his hon- 1319-20, Maj. op. merely at but it under- or,” judge longer such that the trial "is no argument scores the brief's that the state’s I, impartial.” Hurles (quoting 849 P.2d at 3 simple straightforward, malting case was and 1010). majority 598 P.2d at The relies on this appointment attorney of a second unneces- 1315-16, critique, Maj. op. at but fails to note sary. that "interpreted Dean nevertheless Fenton as categorically permitting special action re- Appeals 6. The Arizona Court of noted that result, sponse by any nominal-respondent judge.” Dean had criticized quoted ruling Dean’s statement that its allowed the 849 P.2d at 3. decision, Supe- ing” lawyer on the need for second a later Dunn eluded Court, Ariz. 772 P.2d 1164 evidence to the trial court rior did “submit interpreted Fenton which had (App.1989), regarding customary practice in defense of special to a judge respond allowing cases,” capital the court no matter “[found] judicial policy, gov- should to defend action action warrants intervention I, cases in the future. Hurles ern such this time.” Id. Dunn, Ari- Building 849 P.2d majority’s opinion claims that held that a Appeals zona Court Appeals the Arizona Court of in this in a respondent as the nominal designated ‘inap- case out” Hilliard “for “called may file brief proceeding conduct,” 1321-22, Maj. op. at propriate’ defending an adminis- purpose important “an strong and constituted it is policy practice, but “that trative judicial participation of active rebuke merely respond for a improper actions,” contrary id. at are of an individual advocate the correctness unsupported by to and language its ruling single Applying in a case.” Id. opinion.7 majority While uses the it, rule to the case before standing new nearly “improper” word ten times to de- pleading “the noted that because court that a scribe the fact brief was submitted merely respondent judge that the argues behalf, Judge Maj. op. on the evidence before on Hilliard’s see at properly ruled standing” lacked to file judge 1306, 1309, 1311-12, ... the trial 1314 n. 1315-16 action. Id. at 4. special a (twice), 1316, 1316-17, brief the Arizona Court Appeals “improper” only of used the word of the Turning its attention to the merits twice, it appropriate to define when is for a petition, the Arizona Court special action trial to a brief in a judge special submit agreed Judge Appeals (in which proceeding judge action case a appoint Hurles’s motion to sec- denial of it standing) inappropriate has and when is counsel counsel. Because Hurles’s ond (such judge standing).8 particularized make “a show- lacks had failed to Appeals] held that ... it Lacking support [Arizona in the text of the Court of Court of is majority judge Judge Appeals’s opinion, improper relies on two for a to Hilliard [act did],'" added). position, Maj. op. (emphasis buttress its one at 1316 statements to Hilliard, Judge unabridged quotation and the other Assistant The version of this Attorney Colleen French. In her or- Appeals General clear that the Court of was not makes claim, Hilliard, judicial rejecting bias specifically criticizing Judge der but was longer Judge “judges noted that no formulating quo- Hilliard a new rule of law. The full response special 'improper' actions judge file an reads: "The court held that a tation Appeals’s] decision in since the respondent special [Court named as a in a action can majority’s Superior The Court.” pleading only explain Hurles responsive to or file a Judge suggestion passage Hil- that this shows practice, policy, an administrative defend acknowledgment rule, that the court’s “de- liard's judge improper local and that it is for important strong was an rebuke cision respond ‘merely to advocate the correct- ” special judicial participation in ac- active ruling single in a case.’ ness of an individual tions,” Maj. op. mystifying. If Schriro, is Opp. Mot. to Recuse at Hurles v. quotation marks anything, the use of (D.Ariz.2008), No. CIV-00-0118-PHX-RCB "improper” in this context connotes majority's paraphrase is ECF 72-6 at *25. The art, following being as a term of used misleading. Appeals, usage rather than its of the Court of meaning. passage fairly cannot explained common its new rule on stand- 8. The court culpa part of the trial proper be read as a mea ing “We hold that it is for as follows: judge. respondent in a judge as a named Second, responsive pleading if the majority quotes action to file a the Assistant " response explain or de- saying: purpose of the is General as 'The Arizona I, (1975); Maj. The court did Hurles 849 P.2d 3-4. 43 L.Ed.2d see “improper” suggest op. the term at 1315-16. use a brief in de- that a who submits particular ruling gives ap- of a

fense D any otherwise commits pearance of bias or year A after the court denied his first Rather, type impropriety.9 of ethical relief, petition post-conviction for Hurles merely appeals court of resolved two com- stating filed a motion that he intended to peting authority lines of and determined file a petition post-conviction second standing that a trial lacks to defend relief that would raise his appearance-of- specific ruling pro- action bias due claim based on the ceeding. proceeding. He therefore moved to Finally, it noteworthy that at the time Judge recuse Hilliard from further in- submission the brief on behalf of volvement his case. Hurles’s recusal Hilliard, Hurles did not indicate motion was referred to a different flag concern or otherwise this event as judge, Judge Ballinger, court who ruled being ordinary. out of the Hurles said that there was no basis to transfer nothing judicial about bias concern be- judge.11 Hurles’s case to another jurors fore or after the trial in which the then submitted his second unanimously him guilty premedi- found relief, post-conviction which assigned felony tated and murder. Nor did he raise pursuant Hilliard to Arizona Rule 32.4(e) such a concern at sentencing, where under of Criminal Procedure rules, then-current Arizona trial judge Ballinger’s determination.

acted alone in imposing penalty. the death the applicable objective noted test under recusal, Nor did appeal Hurles’s direct or first Arizona specifically, law for petition post-conviction for objective relief raise “whether a per- reasonable and judicial bias claim.10 This silence detracts son all knowing the facts would harbor (and majority’s) from Huries’s position doubts concerning judge’s impartiali- that the submission of the ty.” brief creates the In describing the facts of the action, sort of extraordinary situation that gives Judge Hilliard stated that the At- “probability rise to a torney of actual bias” that is specific General had no authoriza- high “too to be constitutionally tolerable.” tion to a pleading file on her behalf in the Larkin, 47, 35, action, Withrow v. 421 U.S. 95 (Judge and that she Hilli- practice, policy, fend an administrative or lo- 10. Per Arizona Rule of Criminal Procedure rule, improper judge cal but that it is for a 32.4(e), petition post-convic- Hurles’s first for respond merely to advocate the correctness of assigned tion relief was Hilliard. ruling single an individual in a case.” See petition, The trial court denied the and the I, 3; ("Our Hurles 849 P.2d at id. at 4 see also Supreme Arizona Court affirmed. holding judge's responsive pleading that the improper unnecessary makes it for us to Judge Ballinger construed Hurles’s motion propriety decide the of the General cause, change judge aas motion for behalf.”). appearing on her which under Arizona Rule of Criminal Proce- contrast, 9.By Appeals the Arizona Court of 10.1, change dure entitles a defendant "to a might proper judge noted that it be for a judge impartial hearing if a fair and or trial "attempting respond allegation to an cannot be had reason of the interest or impropriety” respond ethical ain prejudice assigned judge.” of the proceeding. 849 P.2d at 3 n. 4. The suggest court did not Hilliard was guilty lapse. of an ethical

1329 only reveals “Supreme precedent Court ard) with the Attor- no contact had made appear- noted circumstances in which an further three ney She General. any aspects of pointed not opposed ance of to evidence bias—as post- first trial or the recusal.” actual bias—necessitates Crater Rely- indicated bias. (9th relief that conviction Galaza, 1119, 1131 491 F.3d Cir. determination, Judge Ballinger’s ing on (1) 2007). are when These three situations test, objective Arizona’s applying direct, substantial personal, “has that the facts did Hilliard ruled reaching interest in conclusion pecuniary a matter of state her recusal as require (altera- id. against litigants],” of the [one process to a due law, not amount and did Ohio, Turney v. original) (quoting tion in Therefore, rejected court violation. 510, 523, 437, 47 71 L.Ed. 273 U.S. S.Ct. Supreme The Arizona Hurles’s claim. (1927)) (internal quotation marks omit- 749 opinion. without affirmed Court (2) ted); “a becomes embroiled when controversy with one of running, in a bitter II (quoting Mayberry v. litigants,” id. above, court the state trial described As 455, 465, Pennsylvania, 400 91 S.Ct. U.S. a reasonable and that because determined (internal (1971)) quo- 27 L.Ed.2d 532 all the facts objective person knowing (3) omitted); when a tation marks harbor doubts about would not accusatory ‘part pro- judge “acts pre- Judge Hilliard’s role impartiality, ” Murchison, cess,’ (quoting In re id. and sentence did not siding over the trial L.Ed. 942 U.S. due Hurles of his federal deprive (1955)). claim that Judge Here there is no trial court’s decision is rights. The pecuniary Hilliard had a interest claim, and on this last reasoned decision of Hurles. Nor does the ma- prosecution consider the one that we must therefore jority suggest Hilliard was em- Nunne- AEDPA review. See Ylst v. under running in a feud with Hurles. broiled 797, 804, maker, Instead, majority on three Su- relies (1991). Under L.Ed.2d Murchison, John- preme opinions, Court 2254(d)(1) prece- § son, authority for its Caperton,13 and dent, determining with are tasked we rights process that Hurles’s due conclusion “contrary this determination whether judge acted as were violated because Supreme Court clearly established to” Maj. op. at accusatory process. part of the using analytic framework precedent, 1309-11,1319-22. set forth below.12 2254(d)(1) requires § court’s deci- expressly the state court did not 12. Because the state "holdings decisions consid- apply Supreme against Court's sion to be measured ering probability judicial bias rises when a Supreme ... decisions as of [the Court’s] level, "contrary only the to a constitutional deci- time of the relevant state-court 2254(d)(1) § at here. prong is issue to” sion”). justifies majority its reliance on 362, 407, Taylor, U.S. 120 Williams v. 529 See by asserting no new Caperton "announce[s] it 1495, 146 L.Ed.2d 389 S.Ct. analysis that would affect our rule of law 3, here,” yet ten Maj. op. at 1310 n. its cita- 2009, decided in Caperton was 13. Because belie this claim tions to that decision at was de- court decision issue and the state majority’s suggest centrality to the reason- its 2002, "clearly estab- Caperton is not cided in ing. court's decision But because state pur- precedent” for Supreme Court lished majority’s contrary Caperton, the was not Williams v. poses AEDPA review. See 1495, not 362, 412, on this decision does mistaken reliance Taylor, U.S. 529 (2000) analysis. (stating help its AEDPA L.Ed.2d 389 146 1330 part “accusatory

This does not survive scruti- process.” contention This ny. “contrary A is to” state court decision proceeding, ancillary which was de- clearly Supreme prece- established Court guilt penalty, termination of involved an only applies if “the state court a rule dent evaluation only of the evidence for pur- the governing that contradicts law set poses determining whether a second forth in Court cases or if the Supreme necessary. counsel was a set of state court confronts facts materi- Similarly, Johnson v. Mississippi 403 ally indistinguishable from those at issue 212, 1778, S.Ct. L.Ed.2d 423 Supreme a decision of the Court and (1971) curiam), (per rights involved a civil at a nevertheless arrives result different successfully activist who sued a state trial precedent.” from the Court’s Lambert judge enjoin judge from discrimina- (9th Cir.2004) 943, Blodgett, 393 F.3d tory practices juries. in seating Id. at Andrade, 63, (citing Loclcyer v. 538 U.S. 214-15, 91 days S.Ct. 1778. Two after (2003)). 73,123 155 L.Ed.2d being enjoined, so the trial judge found the AEDPA purposes, point For of law is not guilty defendant of criminal contempt in a “clearly if a state court can established” different case. at Id. 91 S.Ct. 1778. “principled draw a distinction” between The Court concluded that due it case before and the Court permit would not the judge, just who had precedent establishing that rule of law. rights lost civil case to the defendant Murdoch, 609 F.3d at 991. (and therefore subject to an ongoing Here, only could state court draw injunction), federal preside over the de- a principled distinction between situa- fendant’s contempt 215-16, trial. at Id. tion in this case and those in Murchison (holding S.Ct. 1778 that because Johnson, it quite but a stretch to had been “a defendant in petition- one of hold that such Supreme precedents er’s rights civil suits a losing party at apply at all. ap- Murchison involved the that,” plainly he was “so enmeshed in mat- pearance of Michigan bias of a state judge involving petitioner” ters require as to his who, sitting while as a “one-man grand recusal). Johnson, Unlike the record here jury,” lying, concluded a witness was does not show Hilliard was charged him perjury, and ordered Hurles, “enmeshed” in involving matters him why to show cause he should not be nor that someone in position would convicted of criminal contempt. 349 U.S. likely personal have a animus toward him. 75 S.Ct. 623. The Court held that id. at 91 S.Ct. 1778 (noting “the grand could not act as a jury “and Cf. affidavits lawyers filed reciting in- try very then persons accused aas temperate remarks of Judge Perry con- result of investigations.” Id. cerning rights litigants”). civil Murchison, major- The S.Ct. 623. Unlike Judge Hilli- ity’s position that the Arizona ard did not Court of prosecutorial assume role in Appeals’s fact, ruling on standing give Hurles’s case. would neither Hurles nor rise to a majority temptation on suggests even that Hil- part nice, clear, liard “not to participated any way in in hold the balance the formal true,” accusatory process Maj. op. (quoting that resulted in at 1320 Tu- trial, rney, 532, 437), Hurles’s 273 over which U.S. at 47 S.Ct. is presided. later Nor can the action meritless. With all respect, due the ma- proceeding, in jority’s holding which Hurles asked the Ari- equating a state court rul- zona Appeals Court of grant request ing his that Hilliard lacked standing, for a second attorney, defense be deemed but correctly had ruled on the merits of

1331 2254(d)(1). Williams, § not violate request, with appointment-of-counsel Johnson’s, 406,120 judge from at S.Ct. 1495. enjoining U.S. order discrimination gender further racial objective comparison Accordingly, courtroom, straight-face fails even Supreme case to the Court deci- test. beyond ques- shows sions discussed above for the Caperton cites majority also The conclusion that the state court’s tion failure proposition general clearly “contrary prece- to” established not a due may constitute to recuse Because the court is not relieved dent. of actual bias probability if “the violation deference, the district court was AEDPA or decisionmaker part authority determining it had no correct constitutionally tolerable.” high too to be is relief.14 grant habeas Withrow, (quoting at 2259 129 S.Ct. 1456). Although Ca at 95 S.Ct. U.S. Ill here, it applicable because is not perton of AED- application Because the correct Supreme clearly established Court was not straight-forward, majority’s of the state court PA here is at the time precedent issue, court’s decision surpris- at the state to AEDPA is approach decision anomalous has contrary to this rule. Court considering is not ing. Instead of whether the general more the rule clear that the made contrary clearly opinion state court precedent, the by Supreme laid out Court precedent, the established give a state court latitude we must more majority opinion focuses on whether the that a defendant reasonably determine “to determination of the was “an unreasonable Knowles that standard.” has not satisfied light presented facts in of the evidence 111, 129 556 U.S. S.Ct. Mirzayance, Maj. proceeding.” op. court at the State L.Edüd 251 Ca 2254(d)(2)). § (quoting that a failure to recuse makes clear perton only violation to a constitutional rises A Caperton, case.” “exceptional most approach flaw in this The crucial (“It is, 2263; see also id. are no material facts dis- clear: there course, attack on a every question, The ultimate pute in this case. sitting.”) (quoting him from disqualifies involving a specific fact situation whether 499). Mayberry, 400 U.S. constitutionally judge “created a intoler- Arizona court’s determination Because the bias,” legal is a probability of actual able proceeding did not that the by objective rules. question determined exceptional level was not to such an rise “ 2262; 129 S.Ct. at see also Caperton. See [from], ‘opposite ‘diametrically different’ that the Due Process (stating id. at 2263 [to], ‘mutually in character or nature’ by objective stan- implemented “is it is not Clause Caperton, the rule of opposed’ to” proof of actual case, require dards that do not and therefore does “contrary to” AEDPA, only "the extreme of cases.” requirements concerns most Contrary to the Lavoie, Aetna Ins. Co. v. majority appears to con duct a de novo Life 89 L.Ed.2d 823 decision sub 106 S.Ct. of the state trial court's review majority's description emotional of Maj. op. But even were Even the at 1310-14. silentio. review, disguise proceeding cannot engage the action in such there we authorized to Attorney the General’s submis- majority’s the fact that support for the conclusion is no Judge supporting Hilliard’s process rights were violat- sion of brief due that Hurles's appointment the denial of Hurles’s motion for Supreme has held that a ed. The Court rise to that level. process counsel does not raises due of second judge’s failure to recuse bias”)- nonexistent, mini- Supreme brief-writing, with this whether Consistent solely jurisprudence, mal, substantial, Hurles focuses Court or irrelevant because, explains, as he bias apparent claim that publicly Hurles’s known judicial conflicts of inter- “in the context of give constitutionally facts rise to a intoler- est, process by proof is offended not of due of appearance able bias. (something literally impossible

actual bias party prove) for a but rather B impropriety.”15 of appearance Given majority escape tries to of force bias,” into actual inquiring “difficulties of by asserting this conclusion that the state has noted that court's decision was based on an unreason- judge’s inquiry into his or her own motives First, fact-finding process. able ma- or bias are irrelevant. Id. 2268. For jority Judge claims that Hilliard erred reason, Judge explanations Hilliard’s resolving challenge to her own impar- role in the proceeding, of her limited which tiality. But the majority acknowledges, unreasonable, majority asserts are 1313-14, Maj. op. at it improper is not 1313-14, Maj. op. at do not make a differ- recusal; a judge to rule on his or her own ence to the state court’s resolution of the rather, it procedure. is the standard Un- Judge constitutional issue. In her ruling, law, der both federal and Arizona judges explained Hilliard the special action typically seeking rule on motions to recuse input brief was drafted without her matter, and, pending them from a where authorization and that she did not make necessary, they determine the relevant during contact with the General Id.; see, 455(a); § e.g., facts. 28 U.S.C. pendency action. These 2.11(A); Ariz.Code of Jud. R. Conduct see only are the “facts” “found” States, also Corp. v. United knowledge. Maj. op. based on her own Microsoft 1301, 1301-02, 1311-12, 1312-13. But (2000) (statement L.Ed.2d 1048 of Rehn- views her lack of regarding involvement C.J.) quist, (setting forth regard- the facts the matter are not relevant to Hurles’s ing representation his son’s Microsoft claim that the undisputed (namely, facts matter, a different concluding that a in Judge brief was submitted Hilli- require those facts did not his recusal proceed- ard’s name brought by case ing, the Microsoft on the same brief discussed the evidence the subject matter because “a present, State intended to and the brief well-informed questioned individual would ap- [not] whether Hurles’s then-current conclude attorney pearance impropriety was able to competent, render exists” based on assistance) facts); gave ap- Perry effective rise to an those v. Schwarzenegger, 628 (9th Cir.2011) (statement otherwise, pearance of Said F.3d bias. of Re- J.) inhardt, Hilliard’s behind-the-scenes involvement in (setting regard- forth the facts consistently subjective prevail Hurles has stressed the themes bias to on []his claim.” "appearance impropriety,” reply post-convic- and "struc- brief in the second process,” tural any proceeding due rather than argued conduct tion likewise that: evincing part actual bias on the process "[CJourts will find a due violation example, upon Hilliard. For showing judge's in his Second Petition of a conflict of inter- Relief, repeatedly regardless Post-Conviction complaining of whether the est— emphasizes litigant that due subjective sometimes re- can demonstrate actual quires judges arguments recusal of who "no actual have bias at all.” Hurles’s own thus majority's bias.” Hurles also key reminded the court that undercut claim that the necessarily he inquiry "need not demonstrate actual in this case is a factual one. only dispute necessary and her when relates to relationship with his wife his ing fact that be resolved in or- him material must matter before in the involvement fully adjudicate petition- the habeas der to because “a a motion to recuse rejecting Rosario, See, e.g., Perez v. er’s claims. of all knowledge person reasonable (9th Cir.2006) (“Where 943, 950-51 F.3d conclude that [his] [not] the facts would evidentiary no that an there is likelihood reasonably ques- be might impartiality hearing have affected the determi- would tioned”). majority asserts that n judge’s court, nation of the state its failure to hold propriety the determination about does not make such determination un- one different pending in a case is recusal Maddox, reasonable.”); Taylor v. see also regarding a determination from the same (9th Cir.2004). 366 F.3d 1000-01 As 1312-14, case, no Maj. but op. past noted, however, already there was no such be made. distinction can principled claim that dispute Judge here: Hurles’s situations, the apply the must both on the appeared Hilliard biased was based objective whether the standard: same undisputed fact that a brief was submitted reasonably be impartiality could in in the action special proceed- her name majority’s position par- questioned. The ing. in case: it is hard to ticularly tenuous Hilliard was convincingly Judge that argue (in belatedly Although reply deciding in objectively unreasonable post-conviction in the second state brief motion, that anoth- given recusal that he proceeding) “anticipatefd] stated Judge, Judge Superior er Arizona development” the need for factual order reached the same Ballinger, independently explore “to the nature of the contacts” Hilliard.16 And as Judge conclusion the office and between General’s majori- plain, has made this discussion court, not indicate facts he did what Judge Hilli- suggestion that ty’s repeated developed that would have could have been submitting “improperly” ard behaved claim, why his due supported (and proceeding action brief the nature of the contacts made a differ- held) Appeals so that the Arizona Court Judge ap- claim that Hilliard ence to his is baseless. peared participation biased based on her proceeding.17 And be- Second, argues that majority rather cause his claim focuses on apparent, fact-finding process was state court’s actual, bias, only salient facts are than the court declined to hold flawed because the fact of already those in the record: evidentiary hearing appear- on Hurles’s participation Hilliard’s Maj. op. claim. at 1310-13. ance-of-bias in that her briefs statements action and fails; obviously, an This contention also proceeding. fact-finding process is irrelevant error in a dispute. facts in Because there is no basis to conclude if there are no material majority, court’s decision was based In the cases cited we have the state evidentiary hearing is on an unreasonable determination clear that an made n - n , - 1388, 1398, Presumably Judge Ballinger's in- 16. because Moreover, Hurles’s re- dependent determination that L.Ed.2d 557 presented arguments com- decide Hurles’s recusal motion the same could cusal motion pletely majority’s allegations undermines the claim and bias as his second objectively incorpo- Hilliard was unreasonable post-conviction and even relief so, doing majority reference; tries to avoid con- arguments accord- rated those Judge Ballinger’s sidering import de- ingly, Judge Ballinger’s on all decision was Maj. (“Judge op. at 1314 n. 6 Bal- cision. subsequent reso- fours with we are linger’s is not the decision decision arguments. lution of those same reviewing.”). adjudicat- This is an error: anything, the nature of those contacts claim, If petitioner’s ing a habeas federal only to a claim of actual would be relevant bias, that was consider "the record court should disclaimed in his state- which Hurles adjudicated court before state Pinholster, supra papers. See note 15. Cullen v. court claim on the merits.” 1334 evidence, 2254(d)(2), § light process facts reveals a due violation.

facts Un- 2254(d)(1), § majority is not relieved of AEDPA der the state court’s determi- prong of the deference under that statute. nation that there no such violation is otherwise, holding majority’s contrary deci- not Supreme prece- to Court petitioners majority’s sion invites future habeas dent. Because the decision in- argument raise the baseless that a state lawfully imposed capital validates a sen- tence, legal rulings actually court’s are unreason- frays further (increasingly threadbare) factual an ap- able determinations. Such fabric of our AEDPA and due proach directly contrary Congress’s jurisprudence, lays 2254(d) §in groundwork future, command and blurs a critical even more frivo- beyond line that extends far our habeas lous challenges judges’ habeas to trial im- jurisprudence. I partiality, must dissent.

IV Supreme harshly Court has criti- cized our non-compliance with AEDPA

deference, only Term,18 but many past years as well.19 Here the ma- jority again disregards once the AEDPA rules that limit a federal habeas court’s Joseph FRANKL,* Regional F. Director authority,” Collins, “role and Rice v. 546 Region 20 of the National Labor 333, 335, 969, U.S. 126 S.Ct. 163 L.Ed.2d Board, Relations for and on behalf of (2006), by claiming 824 it is relieved of Board, the National Labor Relations

AEDPA deference due to the state court’s Petitioner-Appellee, facts,” “unreasonable determination of the 2254(d)(2). § But here the state court’s v. ruling a legal one. There are no facts, disputed material only ques- CORPORATION; HTH Koa tion is applying Management, LLC, whether the Supreme dba objective Court’s rules to undisputed Hotel; Pacific Beach See, Cullen, 1388; e.g., curiam) (same); Visciotti, 18. (per 131 S.Ct. Felknerv. v. Woodford (cid:127)- n , - Jackson, 1305, 19, 20, 357, U.S. 131 S.Ct. 537 U.S. 179 123 S.Ct. 154 L.Ed.2d (2011) curiam); (2002) curiam) (per (per L.Ed.2d 374 (reversing Swarthout 279 Ninth Cir- - Cooke, -, 859, grant v. U.S. cuit's 131 S.Ct. 178 habeas relief because it "ex- (2011) curiam); (per L.Ed.2d Harrington imposed ceed[ed] limits on federal habeas —(cid:127) Richter, -, 770, 2254(d)”); § v. review Early U.S. 28 U.S.C. 131 S.Ct. v. —(cid:127) Packer, 3, (2011); Moore, 362, L.Ed.2d 624 Premo v. U.S. 123 S.Ct. U.S. -, (2002) curiam) (admonish- (per 131 S.Ct. L.Ed.2d 263 178 L.Ed.2d 649 ing the "repeatedly Ninth Circuit for and er- " See, Smith, 6, 8, roneously e.g., substitut[ing]” phrase Schriro v. 546 U.S. ‘failed ' (2005) apply clearly Supreme 126 S.Ct. established (per 163 L.Ed.2d 6 cu- riam) ("[T]he law” demanding requirement for "the more Appeals Court of exceeded its 2254(d)(1): § review....”); authority 'contrary limited that the decision on habeas be ’ McNeil, 433, 437, clearly Middleton v. established Court law” 541 U.S. added)). (2004) (emphases (per 158 L.Ed.2d 701 cu- * riam) ("[The Joseph Ninth Circuit's] conclusion failed F. prede- Frankl is substituted for his give appropriate Norelli, Joseph deference to the state Regional cessor P. Director decision.”); Yarborough court's Gentry, Region 20 of the National Labor Relations 1, 11, Board, (2003) 43(c)(2). pursuant 157 L.Ed.2d 1 R.App. to Fed.

Case Details

Case Name: Hurles v. Ryan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 7, 2011

Citation: 650 F.3d 1301

Docket Number: 17-71087

Court Abbreviation: 9th Cir.