Hurles, et al v. Schriro, et al

Filing 170

ORDER denying 161 Petitioner's motion to compel disclosure. Signed by Judge Douglas L Rayes on 1/4/16. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Dean Hurles,
Petitioner,

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Charles L. Ryan, et al.,

DEATH PENALTY CASE

v.

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No. CV-00-118-PHX-DLR

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ORDER

Respondents.

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This matter, remanded from the Ninth Circuit, is set for an evidentiary hearing on
Petitioner’s judicial bias claim. Before the Court is Petitioner’s motion to compel
disclosure. (Doc. 161.) He seeks the following information: 1) a list of special actions
filed after January 1, 1990, in which the office of the Arizona Attorney General
represented a judge or the court named as the petitioner or respondent, and 2) a list of
special actions in which Colleen French, while employed as an Assistant Attorney
General, represented a party in a special action. (Id.) Respondents oppose the motion.
(Doc. 164.)
DISCUSSION
A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”
Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356,
1358 (9th Cir. 1993). Rule 6 of the Rules Governing Section 2254 Cases provides that:

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A judge may, for good cause, authorize a party to conduct discovery under
the Federal Rules of Civil Procedure and may limit the extent of discovery.

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. . . A party requesting discovery must provide reasons for the request. The
request must also include any proposed interrogatories and requests for
admission, and must specify any requested documents.
Rule 6(a) and (b), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (emphasis
added).
Whether a petitioner has established “good cause” for discovery under Rule 6(a)
requires a court to determine the essential elements of the petitioner’s substantive claim
and evaluate whether “specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .
entitled to relief.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286,
300 (1969)).
In remanding the case, the Ninth Circuit directed this Court to determine “whether
the probability that Judge Hilliard harbored actual [bias] against Hurles is too high to be
constitutionally tolerable.” Hurles v. Ryan, 752 F.3d 768, 792 (9th Cir. 2014) (quoting
Bracy v. Gramley, 520 U.S. 899, 904 (1997). To make the determination, the Court must
ask “whether the average judge, in Judge Hilliard’s position, was likely to sit as a neutral,
unbiased arbiter or whether there existed an unconstitutional risk of bias.” Id. The Ninth
Circuit explained that impermissible bias could be shown by “proof that Judge Hilliard
participated in the special action proceedings as more than a nominal party, had contact
with French, commissioned or authorized the responsive pleading or provided any input
on the brief” or became “embroiled in a running, bitter controversy” with Petitioner or
counsel. Id.
The Court agrees with Respondents that the interview statements made by
Commissioner French, which form the basis for Petitioner’s request for disclosure, do not
suggest that it was unusual for the Attorney General’s Office to respond to a special
action on behalf of a judge or court. French was asked “how many special actions you
think you were involved in?” (Doc. 161-1.) She answered, “I can think of one other one.”
(Id.) Even assuming there is some relevance to the frequency of these special actions, the
fact that Commissioner French had been involved in two special actions says nothing
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about the rarity of cases such as Petitioner’s.

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In addition, as Respondents note, information about unrelated special actions

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where the Attorney General’s Office represented a court or a judge are irrelevant to a

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determination of whether Judge Hilliard in fact was personally involved in Petitioner’s

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special action. Even assuming, as Petitioner speculates, that the rarity of such cases might

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suggest a higher level of participation on Judge Hilliard’s part, such information is not

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relevant to the issue of Judge Hilliard’s actual level of participation, which can only be

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established by the testimony of Commissioner French and Judge Hilliard herself.

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Information about other special actions will not answer the question posed by the Ninth

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Circuit on remand: whether Judge Hilliard participated in the special action as more than

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a nominal party, had contact with French, or commissioned, authorized, or provided input

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on the responsive brief. Hurles, 752 F.3d at 792.

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For these reasons, Petitioner has not shown “good cause” for the requested
disclosure.

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Accordingly,

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IT IS ORDERED denying Petitioner’s motion to compel disclosure (Doc. 161).

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Dated this 4th day of January, 2016.

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Douglas L. Rayes
United States District Judge

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