Hurles, et al v. Schriro, et al
Filing
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ORDER that Petitioner Hurles' claim of judicial bias is DENIED and Hurles' claim of ineffective assistance of appellate counsel is DENIED. IT IS FURTHER ORDERED granting a certificate of appealability on Hurles' judicial bias claim and his ineffective assistance of appellate counsel claim. The Clerk shall enter judgment. Signed by Judge Douglas L Rayes on 5/19/16. (LSP)
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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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ORDER
v.
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No. CV-00-0118-PHX-DLR
Charles L. Ryan, et al.,
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Respondent.
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On January 21, 2015, this case was remanded by the Ninth Circuit Court of
Appeals. (Doc. 118.) On January 29, 2016, pursuant to the remand order, the Court held
an evidentiary hearing on Hurles’ claim of judicial bias.
The Ninth Circuit also ordered this Court to reconsider, in light of Martinez v.
Ryan, 132 S. Ct. 1309 (2012), Hurles’ claim that appellate counsel performed
ineffectively by failing to raise a claim under Ake v. Oklahoma, 470 U.S. 68 (1985).
Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014). The parties briefed this issue. (Docs. 137,
141, 148, 188, 190, 194.)
This order addresses both remanded issues. For the reasons set forth below, the
judicial bias claim is denied. The Court also finds that Hurles is not entitled to relief on
his ineffective assistance of appellate counsel claim and that an evidentiary hearing on
the claim is not necessary.
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JUDICIAL BIAS
I.
Background
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The following facts are taken from the opinion and order remanding the case,
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Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014), the Arizona Supreme Court’s opinion
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affirming Hurles’ conviction and sentence, State v. Hurles, 914 P.2d 1291 (Ariz. 1996)
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(en banc), and this Court’s review of the record.
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A.
Trial
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Hurles, on parole after serving nearly fifteen years in prison for sexually assaulting
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two young boys, went to the library in Buckeye, Arizona, on the afternoon of November
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12, 1992. After the last patron left, Hurles locked the front doors and attacked librarian
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Kay Blanton in the back room. He attempted to rape her, stabbed her thirty-seven times,
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and kicked her so violently that he tore her liver. She later died of her injuries.
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Hurles left the library and proceeded to the home of his nephew, Thomas. He told
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Thomas that he had been in a fight with a Spanish man at the library. After changing his
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clothes and cleaning up, Hurles asked Thomas for a ride to Phoenix. On the way to
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Phoenix, Hurles had Thomas pull over so he could discard his bloody clothes. Thomas
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dropped Hurles off at the bus station in Phoenix, where Hurles purchased a ticket to Las
Vegas. Thomas returned to Buckeye and contacted the police. Police intercepted the bus
and arrested Hurles.
Hurles was charged with burglary, first-degree murder, first-degree felony murder,
and attempted sexual assault. A jury found him guilty of all charges.
The court then conducted an aggravation and mitigation hearing to determine the
appropriate sentence. Hurles offered mitigating evidence about his dysfunctional family
background, cognitive deficiencies, long-term substance abuse, mental illness, good
behavior while incarcerated, and an expert opinion that he suffered from diminished
capacity at the time of the crime.
The court found one statutory aggravating factor: that Hurles committed the crime
in an especially cruel, heinous or depraved manner. The court found two nonstatutory
mitigating circumstances: that Hurles suffered a deprived childhood in a dysfunctional
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home and that he had behaved well in prison prior to the underlying crime. The court
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concluded that these circumstances did not warrant leniency and sentenced Hurles to
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death. The Arizona Supreme Court affirmed. Hurles, 914 P.2d 1291.
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B.
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Prior to trial, Hurles moved for appointment of a second attorney to assist in his
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defense. (SA at 30-34.)1 The trial judge, Maricopa County Superior Court Judge Ruth
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Hilliard, summarily denied the motion. (Id. at 36.) Hurles sought interlocutory relief in
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the Arizona Court of Appeals, filing a petition for special action challenging the trial
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court’s ruling and asserting that defendants in capital cases are entitled to two lawyers.
Special Action
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(Id. at 38.)
The named parties were Richard Hurles, Petitioner; Maricopa County
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Superior Court and Judge Hilliard, Respondents; and Maricopa County Attorney Richard
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Romley as the “Real Party in Interest.” (SA at 64.)
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The Maricopa County Attorney’s Office, which was prosecuting the case, declined
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to respond to the special action because under state law it lacked standing in the selection
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of defense counsel. See Hurles v. Super. Ct. in and for the Cty. of Maricopa, 849 P.2d 1,
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2 (Ariz. Ct. App. 1993). At the request of the Presiding Criminal Judge of the Maricopa
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County Superior Court, Ronald Reinstein, the Arizona Attorney General filed a response.
Id.
The response was prepared by Assistant Attorney General Colleen French. The
response began, “Respondent Judge Hilliard, through her attorneys undersigned, hereby
enters her response to Petitioner’s petition for special action.” (S.A. at 64.) In its
“Statement of the Facts,” the response described the murder as “brutal” and characterized
the State’s case against Hurles as “very simple and straightforward, compared to other
capital cases.” (Id. at 65, 66.) The response then addressed Hurles’ legal arguments,
including his request that the Arizona Court of Appeals follow California law, which
presumed the necessity of second chair counsel in death-penalty cases, and his contention
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“SA” refers to documents filed in Petitioner’s Special Action Proceeding before
the Arizona Court of Appeals (Case No. CV-93-0134-SA). Copies of these records as
well as the original trial transcripts and appellate briefs were provided to this Court by the
Arizona Supreme Court on August 24, 2000.
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that the lack of second counsel would violate his Sixth Amendment and equal protection
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rights.
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ethically bound to withdraw from the case, and possibly the Maricopa County list of
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contract defense lawyers, if she believed herself incapable of competently representing
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Hurles. (Id. at 73.)
(Id. at 67-73.)
Finally, the response suggested that appointed counsel was
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The Arizona Court of Appeals ordered supplemental briefing on the issue of Judge
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Hilliard’s standing. French authored the response, arguing that judges had an interest in
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retaining discretion with respect to the appointment of counsel in capital cases. (Id. at
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78.) Specifically, French argued that it was appropriate for Judge Hilliard and the
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superior court bench to defend their interest in the bench’s authority to make case-by-
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case determinations in the appointment of capital counsel because the Real Party in
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Interest did not have standing to litigate the case. (Id.)
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In a published decision, the Arizona Court of Appeals declined to accept
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jurisdiction on the merits, concluding it was premature in light of Hurles’ failure to make
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a particularized showing on the need for second counsel in his case. Hurles v. Super. Ct.,
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849 P.2d at 2. However, the court addressed Judge Hilliard’s standing, holding that a
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responsive pleading from a trial judge may be filed only if the purpose is to explain or
defend an administrative practice, policy, or local rule, not simply to advocate the
correctness of the judge’s individual ruling. Id. at 3. Because the response filed by the
Arizona Attorney General on behalf of Judge Hilliard fell into the inappropriate “I-ruledcorrectly” category, the appellate court declined to consider the pleading.2 Id. at 4. As to
Judge Hilliard’s involvement in the filing of the responsive pleading, the court observed:
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French, representing the Maricopa Superior Court and Judge Reinstein as
presiding criminal judge, subsequently filed a special action in the Arizona Supreme
Court, naming as Respondents the judges of the Arizona Court of Appeals. (CV-9301335-SA at 1.) The special action contested the court of appeals’ ruling that judges who
are named as respondents in special actions challenging their rulings do not have standing
to appear and respond. (Id. at 2.) The Attorney General also filed a special action on the
question of whether it was entitled to represent judges in special actions on the issue of
appointment of counsel. (SA at 1.) The Attorney General attached to its reply an
affidavit from Judge Reinstein attesting that, due to budget cuts and an increased number
of requests, the Maricopa County Superior Court addressed requests for additional
counsel on a case-by-case basis. (Id. at 105.) The special actions were consolidated. (Id.
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The record does not indicate whether Judge Hilliard, the nominal
respondent, actually authorized such a pleading to be filed. From the
statement of the Attorney General at oral argument, the pleading was
requested by the presiding criminal judge, not by Judge Hilliard, and there
was no contact between Judge Hilliard and the Attorney General’s office as
the pleading was prepared.
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Id. at 2 n.2.
Judge Hilliard continued to preside in the case through trial, sentencing, and the
first post-conviction relief (“PCR”) proceeding.
C.
Second PCR Proceeding
In his second PCR petition, Hurles raised a claim alleging that his Fourteenth
Amendment rights had been violated when Judge Hilliard failed to recuse herself from
his case after becoming a party in the special action proceedings. (Doc. 72, PCR at 2445, 163-72.)3 Hurles also filed an accompanying Motion to Recuse Judge Hilliard. (Id.
at 129-44.) Judge Hilliard referred the matter to the Presiding Judge, who appointed
Judge Eddward Ballinger, Jr., to rule on the motion. (Id., ME at 1-2.) Judge Ballinger
denied the motion, stating that “[w]ith respect to the objective evaluation of the judge’s
actions in this matter, the Court finds no basis to transfer this case.” (Id., ME at 3.)
Judge Hilliard ultimately denied relief on Hurles’ second PCR petition. With
respect to his judicial bias claim, the court ruled:
Defendant argues in claim 2 that this Judge should have recused
herself from consideration of the first Petition for Post-Conviction Relief
based on the Court of Appeals’ ruling in Hurles v. Superior Court, 174
Ariz. 331, 849 P.2d 1 (App. 1993). Defendant argues that because the
Court of Appeals determined that the response filed on behalf of this judge,
(without her input) was wrong, this judge is thereby precluded from hearing
any further matters in this case. However, Rule 81 of the Arizona Rules of
the Supreme Court, Canon 3(E)(1) provides that “A judge shall disqualify
himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned . . . .” The test is an objective one: whether a
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at 93.) The Arizona Supreme Court declined to accept jurisdiction. (Id. at 106.)
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“Doc. 72” consists of separately indexed and paginated PCR documents, minute
entries (“ME”), and petition for review (“PR”) documents from Petitioner’s second PCR
proceeding (Case No. CR-05-0118-PC).
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reasonable and objective person knowing all the facts would harbor doubts
concerning the judge’s impartiality. State ex rel Corbin v. Superior Court,
155 Ariz. 560, 748 P.2d 1184 (1987); Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L.Ed.2d 855 (1988).
The trial judge is presumed to be impartial and the party who seeks
recusal must prove the grounds for disqualification by a preponderance of
the evidence. State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989); State
v. Salazar, 182 Ariz. 604, 898 P.2d 982 (App. 1995). The facts here do not
support disqualification and another judge, Judge Ballinger, so determined.
In the special action in this case, the Attorney General filed a response on
this judge’s behalf but without any specific authorization of such a
pleading. No contact was made by this judge with the Attorney General
and this judge was a nominal party only. The special action was resolved
five years before the first PCR was filed. Based on the circumstances of
this case, the Court finds that a reasonable and objective person would not
find partiality.
As in Carver, Hurles simply alleges bias and prejudice but offers no
factual evidence to support his allegations. There is no allegation of
partiality during the trial or that rulings or conduct during the first PCR
demonstrated any bias. “Appearance of interest or prejudice is more than
the speculation suggested by the defendant. It occurs when the judge
abandons the judicial role and acts in favor of one party or another.” Hurles
has failed to overcome the presumption of impartiality.
(Id., ME at 17-18.)
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Judge Hilliard further held that, even if it was error not to recuse herself, such
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error was harmless in light of the overwhelming evidence of Hurles’ guilt and the
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absence of any risk that injustice would occur in other cases or that public confidence in
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the judicial process would be undermined. (Id. at 19.) The Arizona Supreme Court
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summarily denied review.
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D.
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On habeas review, this Court denied the judicial bias claim on the merits. The
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Habeas Review
Court found that:
[N]othing in the record contradicts the assurances of Judge Hilliard and
Assistant Arizona Attorney General French that the judge played no role in
the preparation and filing of the special action brief. Petitioner has cited no
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evidence to contradict their statements regarding the judge’s role, or lack
thereof, in preparation of the brief. Nor is there any evidence to refute the
conclusion that the positions raised in the brief were anything other than the
positions of the Arizona Attorney General.
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(Doc. 99 at 17.)
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In remanding the case, the Ninth Circuit found that Judge Hilliard came to an
unreasonable determination of the facts in denying Hurles’ judicial bias claim, and that
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this Court abused its discretion by denying the claim without holding an evidentiary
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hearing. Hurles, 752 F.3d at 792. The Ninth Circuit explained that “this case presents an
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especially troubling example of defective fact-finding because the facts Judge Hilliard
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‘found’ involved her own conduct, and she based those ‘findings’ on her untested
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memory and understanding of the events.” Id. at 791.
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The Ninth Circuit directed this Court to hold an evidentiary hearing to determine
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“whether the probability that Judge Hilliard harbored actual [bias] against Hurles is too
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high to be constitutionally tolerable.” Id. at 792 (quoting Bracy v. Gramley, 520 U.S.
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899, 904 (1997)). To answer that question, after noting the “tenor of Judge Hilliard’s
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responsive pleading in the special action,” the Ninth Circuit listed the following factors
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for this Court to consider: (1) whether Judge Hilliard participated in the special action
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proceedings as more than a nominal party; (2) had contact with French; (3)
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commissioned or authorized the responsive pleading; or (4) provided any input on the
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brief. Id.
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E.
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The Court held an evidentiary hearing on January 29, 2016. Hurles called four
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witnesses: Colleen French; Judge Hilliard; Mark Harrison, a judicial ethics expert; and
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Noel Fidel, a former Maricopa County Superior Court and Arizona Court of Appeals
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judge.
Evidentiary Hearing Testimony
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Colleen French testified that she was assigned to file the response to Hurles’
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special action by her supervisor, Paul McMurdie, who was asked to respond to the special
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action by Presiding Judge Reinstein, not by Judge Hilliard. (RT 1/29/16 at 32.) It was at
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Judge Reinstein’s “insistence” that she filed the response. (Id. at 35.) He felt “very
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strongly” about the issue involved. (Id.)
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French testified that, right after she was assigned the case, she called Judge
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Hilliard to inform the judge that she was filing a response to the special action. (Id. at
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34.) Judge Hilliard was “not cooperative,” but she did not tell French not to file the
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response. (Id. at 23.) Judge Hilliard provided no assistance in preparing the brief. (Id. at
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34.) French possibly sent a draft of the response to Judge Hilliard. (Id. at 35.) She sent a
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copy of the filing to Judge Hilliard, as required by the rules. (Id at 24.) She received
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nothing from Judge Hilliard. (Id. at 36.) French spoke with Judge Hilliard only once.
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(Id. at 34.) She felt her client was the Superior Court as well as Judge Hilliard. (Id. at
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25, 36.) Judge Hilliard did not authorize the response and provided no input. (Id. at 41.)
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The language in the response was French’s, and the characterization of the State’s
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evidence came from the prosecuting attorney. (Id. at 37-40.) French testified that Judge
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Hilliard was “not pleased” that the response was filed. (Id. at 42.)
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Judge Hilliard testified that she had no recollection of the special action, nor did
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she recall ever speaking with French. (Id. at 60.) She testified that she did not request a
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special action be filed or solicit a response. (Id. at 74.) She did not recall reading the
response, and it was possible she never saw it. (Id. at 72.) She did not dispute that her
chambers received a copy of the response. (Id. at 62.)
Judge Hilliard testified that she offered no input and received no drafts of the
response. (Id. at 75, 83.) She testified that, although the Attorney General represented
her position, she was not responsible for the language in the response. (Id. at 78-79.)
She also testified that appearing in a special action to defend one of her rulings is
“not something I have done.” (Id. at 67.) As a matter of policy, she generally did not
read special actions, but forwarded them to the presiding judge. (Id. at 73.) Judge
Hilliard believed that judges were represented by the Attorney General’s Office as a
matter of course in all special actions. (Id. at 63, 77.)
Judge Hilliard testified that it was her practice to rule on motions, such as the
motion for second counsel, after consulting with other more experienced criminal judges
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or the presiding criminal judge. (Id. at 70.) She is sure that on such a motion she would
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have consulted with multiple other judges. (Id.) She recalled that at the time of Hurles’
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trial there were financial issues that might have affected the appointment of second-chair
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counsel. (Id. at 71.)
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Finally, Judge Hilliard testified that she did not recall whether she had notes on the
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case. (Id. at 68.) However, she disposed of whatever notes she did have when she retired
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from the bench. (Id.)
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Mark Harrison, Petitioner’s expert witness on judicial ethics, testified that Judge
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Hilliard violated the Arizona Code of Judicial Conduct, Canons 1 and 3, by becoming
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personally involved in the defense of her order and continuing to preside over the case,
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such that her impartiality might reasonably have been questioned. (Id. at 102.)
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Noel Fidel, a former Maricopa County Superior Court and Arizona Court of
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Appeals judge, testified, in contradiction of Judge Hilliard’s belief, that it was
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extraordinarily rare for judges to appear and be represented in special actions. (Id. at
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132.) He testified that the Attorney General represented only judges who were actual,
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rather than nominal, parties. (Id. at 132-33.) However, in closing arguments, counsel for
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Hurles conceded that he was not challenging the veracity of Judge Hilliard or her
testimony. (Id. at 142-43.)
II.
Analysis
The Court finds that an average judge, sitting in Judge Hilliard’s position, was
likely to sit as a neutral, unbiased arbiter. Although the filing of a response in her name
and the tenor of the response arguably suggested that Judge Hilliard was enmeshed and
embroiled in controversy with Hurles and his counsel, the facts do not bear that out.
A.
Findings of Fact
Taking into account the concerns raised by the Ninth Circuit in its remand order,
the Court makes the following findings of fact based on the testimony at the evidentiary
hearing and the record as a whole:
(1)
Judge Hilliard ruled on the motion for second counsel after consulting with
other more experienced criminal judges. When she was served with the special action,
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Judge Hilliard followed the court protocol, as she understood it, by forwarding the
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complaint to the presiding criminal judge, Judge Reinstein.
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(2)
Judge Reinstein had strong feelings about the issue raised in the special
action. He made the decision to request that the Arizona Attorney General respond.
(3)
The case was assigned to French by her supervisor. From the time she was
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assigned the case, French understood she was representing the presiding criminal judge
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and the superior court at the behest of the criminal presiding judge. She understood she
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was not representing Judge Hilliard but it never crossed her mind to respond in the name
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of the presiding judge.
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(4)
French filed the response in the name of Judge Hilliard because Judge
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Hilliard was the named nominal defendant. French did not recognize the potential for the
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appearance of a conflict created by responding in the trial judge’s name.
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(5)
Though it was not settled, Arizona law at the time arguably could have
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been interpreted to support French’s position that the trial judge had an unequivocal right
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to respond to a special action. Hurles v. Super. Ct., 849 P.2d at 3.
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(6)
Judge Hilliard did not participate in the special action proceedings as more
than a nominal party. Although she was provided copies of the briefs, she did not read
them or provide French with any input.
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Judge Hilliard had contact with French concerning the special action on one
occasion. On that occasion, French phoned Judge Hilliard to advise her that French
would be preparing and filing a response. Judge Hilliard expressed disapproval that a
response was going to be filed on her behalf.
B.
Conclusions of Law
The Due Process Clause guarantees a criminal defendant the right to a fair and
impartial judge. See In re Murchison, 349 U.S. 133, 136 (1955); Rhoades v. Henry, 598
F.3d 511, 519 (9th Cir. 2010) (“Due process requires that trials be conducted free of
actual bias as well as the appearance of bias.”). An appearance of bias—as opposed to
evidence of actual bias—necessitates recusal when the judge becomes embroiled in a
running, bitter controversy with one of the litigants. Crater v. Galaza, 491 F.3d 1119,
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1131 (9th Cir. 2007) (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Due process
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also requires a judge to recuse herself when “it is plain that [s]he was so enmeshed in
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matters involving petitioner as to make it most appropriate for another judge to sit.”
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Johnson v. Mississippi, 403 U.S. 212, 215-16 (1971). The inquiry is objective. “We do
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not ask whether [the judge] actually harbored subjective bias. Rather, we ask whether the
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average judge in her position was likely to be neutral or whether there existed an
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unconstitutional potential for bias.” Hurles, 752 F.3d at 788.
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Hurles alleges bias arising from Judge Hilliard’s role as a responsive party in the
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special action. However, Judge Hilliard was named only as a “nominal” party under the
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state rules for special actions. See Hurles v. Super. Ct., 849 P.2d at 2. Although the
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Arizona Attorney General filed a brief in the judge’s name, the evidence presented at the
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hearing is consistent with the record that Judge Hilliard was not involved in the
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proceedings or in the preparation of that brief.
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Judge Hilliard testified that she presently has no recollection of the special action.
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However, French’s testimony about the judge’s lack of involvement in the special action
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is supported elsewhere in the record. Judge Hilliard noted in her order during the second
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PCR proceedings in 2002 that the actions by the Attorney General in response to the
special action petition were made without her input, that “[n]o contact was made by [her]
with the Attorney General,” and that she was a “nominal party only.” (See Doc. 72, ME
8/13/02 at 2.) Likewise, at the time the special action was being litigated, the Arizona
Court of Appeals noted French’s statement at oral argument that “the [Attorney
General’s] pleading was requested by the presiding criminal judge not by Judge Hilliard,
and there was no contact between Judge Hilliard and the Attorney General’s office as the
pleading was prepared.” Hurles v. Super. Ct., 849 P.2d at 2 n.2. At the evidentiary
hearing, French testified that her single contact with Judge Hilliard occurred before she
prepared the response.
Finally, again during the second PCR proceedings, an
independent judge performed an “objective evaluation” and denied Hurles’ motion to
recuse Judge Hilliard. (Doc. 72, ME at 3.)
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There is no evidence of personal antagonism between Hurles and Judge Hilliard
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that could be viewed as compromising the judge’s impartiality. There were no personal
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attacks on the judge, and Judge Hilliard was not personally embroiled in a controversy
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with Hurles. Judge Hilliard was not enmeshed in matters involving Hurles, and the
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question at issue in Hurles’ special action—whether under state law he was entitled to
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appointment of a second attorney—did not touch upon any substantive issues relating to
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Hurles’ guilt or innocence.
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The facts in Crater are particularly instructive. There, the defendant alleged the
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trial judge was biased because at an in-camera pretrial conference the judge told him he
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should accept a plea deal offered by the State. The judge, who had presided over the trial
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of Crater’s co-defendant, stated that “based upon what I’ve heard about this case, I’m real
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sure that you’re going to be convicted of all of those robberies, that you’re going to be
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convicted of shooting the first robbery victim.” Crater, 491 F.3d at 1130. The judge also
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told Crater that “[a] jury is not going to like you” and “most judges . . . would throw the
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book at you.” Id. at 1130-31. The Ninth Circuit found no constitutional violation. It
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concluded that “the judge’s predictions did not suggest bias,” explaining that “opinions
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formed by the judge on the basis of facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Id. at 1132 (quoting Liteky v. United States, 510 U.S.
540, 555 (1994)).
The circumstances here contrast sharply with those in Crater. Judge Hilliard
personally said nothing about the merits of the case against Hurles. The response filed on
her behalf does not suggest any belief about Hurles’ guilt remotely akin to the remarks
made by the trial judge in Crater—remarks that the Ninth Circuit found insufficient to
compromise Crater’s due process rights in the absence of that judge’s recusal. Neither
the tenor nor the contents of the response are attributable to Judge Hilliard.
Ultimately, Hurles argues that Judge Hilliard participated in the special action
simply by referring it to Judge Reinstein, knowing or expecting that he would direct a
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response to be filed, and that she knew the response was filed in her name but did not
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stop it.
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personally invested in the issue raised by the special action. It was Judge Hilliard’s
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practice to rule on motions, such as the motion for second counsel, after consulting with
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other more experienced criminal judges or the presiding criminal judge. She is sure she
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would have followed that practice with the motion for second counsel. The preservation
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of the discretion of trial judges to decide when to appoint a second defense attorney in a
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capital case was an issue of concern for the Presiding Criminal Judge, and it was Judge
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Reinstein who pursued the defense of the special action. Judge Hilliard herself had little
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or no interest in that issue and paid no attention to the filings. She was merely a nominal
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party. Judge Hilliard’s tenuous involvement in the special action did not affect her ability
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to sit as an unbiased judge.
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III.
But this is insufficient to establish judicial bias.
Judge Hilliard was not
Conclusion
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Judge Hilliard’s nominal participation in the special action did not cause her to
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become “so enmeshed in matters involving [Hurles] as to make it appropriate for another
16
judge to sit” or become “embroiled in a running, bitter controversy” with Hurles or his
17
18
19
20
21
counsel. Hurles, 752 F.3d at 792. Under the facts established at the evidentiary hearing,
which confirmed Judge Hilliard’s findings during the second PCR proceeding, no
unconstitutional risk of bias arose from the fact that the response to Hurles’ special action
was filed on her behalf. In sum, the average judge in Judge Hilliard’s position was likely
to sit as a neutral, unbiased arbiter and there was no unconstitutional risk of bias.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
22
The Ninth Circuit directed this Court to reconsider, pursuant to Martinez, Hurles’
23
24
25
26
27
28
claim that his appellate counsel performed ineffectively by failing to raise a claim
challenging the trial court’s denial of funds for neurological testing, in violation of Ake.
Hurles, 752 F.3d at 792. This Court had found the claim, included in Claim 6 of Hurles’
amended habeas petition, procedurally defaulted because Hurles did not raise it in state
court. (Doc. 73 at 8-9.)
I.
Background
- 13 -
1
2
Hurles’ trial counsel filed notice of an insanity defense and moved for a
competency hearing. (ROA 52, 53.) The court granted the motion. (ME 5/6/93.)
3
At the pre-trial competency hearing, Hurles’ expert, neuropsychologist Dr. Marc
4
Stuart Walter, testified that his testing suggested Hurles had “areas of the brain that are
5
dysfunctional.” (RT 11/19/93 at 42-43.) Dr. Walter did not know the extent of the brain
6
damage. (Id. at 43.) He was “fairly certain” that “further neurological studies, such as
7
sophisticated brain mapping” would show brain damage but could not “guarantee” it.
8
(Id.)
9
Dr. Walter explained that diagnosing such an injury would require more
10
sophisticated testing than MRI and CAT scans. (Id. at 43-44.) He recommended a
11
“Beam [Brain Electrical Activity Mapping] Study or a Computerized Topographic
12
Mapping [CTM] Test which is a more sensitive test of brain dysfunction.” (Id. at 45.)
13
Dr. Walter was not qualified to perform these neurological studies. (Id. at 48.)
14
The State’s expert, psychiatrist Dr. Alexander Don, agreed that some objective
15
neurological investigation, like a CTM scan or electroencephalogram, would be useful in
16
detecting brain impairment. (RT 11/23/93 at 14.) He recommended “either a CT scan or
17
18
19
20
21
22
23
24
25
26
27
an MRI. The computer EG scan is not regarded as a useful tool in psychiatric testing at
this time.” (Id.) However, from his interview with Hurles, Dr. Don did not see any type
of organic impairment warranting a CT scan or MRI. (Id. at 16.)
The court found Hurles competent to stand trial. (ME 11/23/93.)
On December 6, 1993, Hurles’ trial counsel filed an ex parte request with the trial
court for funds to pay Dr. Drake Duane, a behavioral neurologist, to perform
“Electrophysiological studies” on Hurles. (Doc. 137-1 at 2.) Counsel’s request had
previously been denied by the Maricopa County Superior Court Contract Administrator.
(Id. at 6.) In January 1994, counsel supplemented her ex parte request with information
concerning the “scientific acceptability” of the CTM “brain mapping procedure.” (Doc.
141, Ex. C at 1.)
On February 14, 1994, the trial court ruled that it could not consider counsel’s
28
- 14 -
1
request on an ex parte basis.4 The court ordered that, “[i]f defendant chooses to assert the
2
Motion and Request, a copy must be sent to the State and the State must have an
3
opportunity to respond.” (Doc. 141, Ex. D.) As Respondents note, the record does not
4
reflect that Hurles ever renewed his request for brain mapping before trial.
5
After the trial commenced, there was further discussion about the ex parte request
6
for funding. (RT 3/18/94 at 3-7.) Hurles’ trial counsel thought she had filed a motion to
7
reconsider, but the court believed it had ruled on everything and no motions were
8
pending. (Id. at 4.) The court then reiterated that “[s]o the record is clear, there cannot
9
be any further ex parte motions of any sort.” (Id.) The record shows that the only ruling
10
concerning the request for funds to conduct a CTM examination was the court’s February
11
14, 1994 order. (Doc. 141, Exs. D, F.)
12
At trial, Dr. Walter testified about the neuropsychological tests he performed on
13
Hurles. (RT 4/12/94 at 13-23.) Based on these test results, together with Hurles’
14
dysfunctional family background and history of substance abuse, Dr. Walters testified
15
that Hurles suffered from mild brain damage, which nevertheless can have “very serious
16
consequences.” (Id. at 36.) He also diagnosed Hurles with organic mental disorder, with
17
18
19
20
21
22
23
24
25
26
a thought disorder (learning disability), and with organic personality disorder. (Id. at 52.)
Dr. Walter testified that Hurles was in a “psychotic state of mind” at the time of
the murder. (Id. at 43.) He testified that Hurles did not know what he was doing or that
it was wrong. (Id.)
Dr. Don, testifying for the State, discussed testing that could be done to determine
whether a person suffered from mild brain damage. (RT 4/13/94 at 27-29.) He then
explained that the correlation between a finding of brain damage and its effect on a
person’s functionality is “quite tenuous, meaning that there aren’t really good correlations
between what is found on neuropsychological testing or what is found on an EEG or what
is found on a CAT scan and an individual’s ability to function.” (Id. at 30-31.)
Dr. Don testified that Hurles was not insane at the time of the murder. (Id. at 15.)
27
28
4
The court relied on a recent Arizona Supreme Court decision, State v. Apelt
(Michael), 861 P.2d 634, 650 (Ariz. 1993).
- 15 -
1
He “wasn’t suffering from a mental illness that affected him at the time the crime
2
occurred such that he knew neither the nature or quality or the wrongfulness of his
3
conduct.” (Id.)
4
After the guilt phase of trial but before sentencing, the court approved funds for a
5
brain scan. See Hurles, 752 F.3d at 782. Dr. Duane conducted the CTM scan. He
6
summarized his findings as follows:
7
8
9
10
11
12
13
14
15
The routine electroencephalogram shows a mild and nonspecific
abnormality in the left frontal region. The date of its development is
indeterminate. The risk for epileptogenesis would appear to be low. The
differential factors include developmental deviation of cerebral
organization, prior head injury versus focal infection. Structural disease,
such as neoplasm, is improbable.
The FFT analysis confirms the above observations to be valid. There is no
evidence of epileptogenesis. The N-100/P-300 yield a slightly long latency
for the N-100 which may represent developmental anomalous cognition as
is common in attention deficit disorder. A mood disorder would appear to
be absent. The visual evoked potential studies yield no definitive evidence
of dysfunction within the visual system nor additional evidence of cerebral
dysfunction.
16
17
18
19
20
21
In summary, the data reveal subtle nonspecific abnormalities in the left
frontal areas, associated with mild processing difficulty which may be
developmental or acquired without risk for epileptogenesis and no evidence
of intercurrent anxiety or depression. These data provide a physiologic
baseline against which future comparison may be made. These studies
supplement, but do not replace clinical judgments.
(Doc. 25, Ex. 1 (emphasis added).)
22
At the sentencing hearing, Hurles presented an expert, Dr. Donald Stonefeld, who
23
diagnosed Hurles as suffering from the following conditions: dysthymic disorder, mild
24
retardation, learning disorder NOS, substance-induced persisting dementia, and
25
substance-induced psychotic disorder with hallucinations. (RT 9/30/94 at 66-77.) Dr.
26
Stonefeld reviewed the “brain mapping data” in reaching his opinions. (Id. at 85.)
27
Nonetheless, although he opined that Hurles had brain damage, Stonefeld testified that
28
his opinion was not based on any imaging tests but on Dr. Walter’s neuropsychological
- 16 -
1
testing. (Id. at 73, 88-89.) Dr. Stonefeld did not discuss the results of the brain mapping
2
test.
3
Despite Dr. Stonefeld’s testimony, the trial court found that the statutory
4
“diminished capacity” mitigating factor, set forth in A.R.S. § 13-751(G)(1), was not
5
proved. The Arizona Supreme Court affirmed the death sentence on independent review.
6
Hurles, 914 P.2d at 1299-1300. Appellate counsel did not raise an Ake claim challenging
7
the trial court’s initial denial of funds for a CTM scan.
8
II.
Applicable Law
9
Federal review generally is not available for a state prisoner’s claims when those
10
claims have been denied pursuant to an independent and adequate state procedural rule.
11
Coleman v. Thompson, 501 U.S. 722, 750 (1991). In such situations, federal habeas
12
review is barred unless the petitioner can demonstrate “cause” for his failure to follow the
13
state procedural rule, and prejudice or a fundamental miscarriage of justice. Id. Coleman
14
further held that ineffective assistance of counsel in post-conviction proceedings does not
15
establish cause for the procedural default of a claim. Id.
16
17
In Martinez, however, the Court announced a new, “narrow exception” to the rule
set out in Coleman. The Court explained:
21
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
22
132 S. Ct. at 1320; see also Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (noting that
23
Martinez may apply to a procedurally defaulted trial-phase ineffective assistance of
24
counsel claim if “the claim . . . was a ‘substantial’ claim [and] the ‘cause’ consisted of
25
there being ‘no counsel’ or only ‘ineffective’ counsel during the state collateral review
26
proceeding” (quoting Martinez, 132 S. Ct. at 1320)).
18
19
20
27
The Ninth Circuit has expanded Martinez to include procedurally defaulted claims
28
of ineffective assistance of appellate counsel. Nguyen v. Curry, 736 F.3d 1287, 1294-96
- 17 -
1
(9th Cir. 2013); see Hurles, 752 F.3d at 781.
2
Accordingly, under Martinez a petitioner may establish cause for the procedural
3
default of an ineffective assistance claim “by demonstrating two things: (1) ‘counsel in
4
the initial-review collateral proceeding, where the claim should have been raised, was
5
ineffective under the standards of Strickland . . .’ and (2) ‘the underlying ineffective-
6
assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
7
must demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th
8
Cir. 2012) (quoting Martinez, 132 S. Ct. at 1318); see Clabourne v. Ryan, 745 F.3d 362,
9
377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, 818
10
(9th Cir. 2015) (en banc); Dickens v. Ryan, 740 F.3d 1302, 1319-20 (9th Cir. 2014) (en
11
banc); Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc).
12
The Ninth Circuit has elaborated on the cause standard set out in Martinez. In
13
Clabourne, the court explained that “to establish ‘cause,’ [the petitioner] must establish
14
that his counsel in the state postconviction proceeding was ineffective under the standards
15
of Strickland. Strickland, in turn, requires him to establish that both (a) post-conviction
16
counsel’s performance was deficient, and (b) there was a reasonable probability that,
17
18
19
20
21
22
23
24
25
26
27
28
absent the deficient performance, the result of the post-conviction proceedings would
have been different.” Clabourne, 745 F.3d at 377 (citations omitted). Determining
whether there was a reasonable probability of a different outcome “is necessarily
connected to the strength of the argument that trial counsel’s assistance was ineffective.”
Id.
Under Martinez, a claim is substantial for prejudice purposes if it meets the
standard for issuing a certificate of appealability.
Martinez, 132 S. Ct. 1318-19.
According to that standard, “a petitioner must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Detrich, 740 F.3d at 1245 (citing Martinez, 132 S. Ct. at 1318-19).
Ineffective assistance of appellate counsel claims are evaluated under the standard
set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000); see Moormann v.
- 18 -
1
Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010). First, Hurles must show that appellate
2
counsel’s performance was objectively unreasonable, which requires him to demonstrate
3
that counsel acted unreasonably in failing to discover and brief a meritorious issue. Id.
4
Second, Hurles has the burden of showing prejudice, which in this context means he must
5
demonstrate a reasonable probability that, but for appellate counsel’s failure to raise the
6
Ake claim, he would have prevailed in his appeal. Id.
The Ninth Circuit has explained that in applying Strickland to a claim of
7
8
ineffective assistance of appellate counsel:
[t]hese two prongs partially overlap. . . . In many instances, appellate
counsel will fail to raise an issue because she foresees little or no likelihood
of success on that issue; indeed, the weeding out of weaker issues is widely
recognized as one of the hallmarks of effective appellate advocacy. . . .
Appellate counsel will therefore frequently remain above an objective
standard of competence (prong one) and have caused her client no prejudice
(prong two) for the same reason—because she declined to raise a weak
issue.
9
10
11
12
13
14
15
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (citations and footnotes omitted);
16
see Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001). The salient question in
17
18
analyzing a claim of ineffective assistance of appellate counsel is whether the unraised
issue, if raised, would have “led to a reasonable probability of reversal.” Id. at 1434-35.
In Ake, the Supreme Court held that “when a defendant demonstrates to the trial
19
20
21
22
23
24
25
26
27
28
judge that his sanity at the time of the offense is to be a significant factor at trial, the State
must, at a minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in the evaluation, preparation, and
presentation of the defense.” 470 U.S. at 83. Failure to appoint an expert under Ake is
subject to harmless error analysis. See Chaney v. Stewart, 156 F.3d 921, 924 (9th Cir.
1998).
III.
Analysis
In remanding for reconsideration of this ineffective assistance of appellate counsel
claim, the Ninth Circuit explained:
Here, the sole defense at guilt was insanity, and Hurles’s expert
- 19 -
1
offered testimony in support of that defense. The state offered a contrary
opinion, resulting in a battle of the experts. Both experts agreed that
objective testing could show brain damage, but the trial court denied
funding for this test until after the guilt phase concluded. The state used the
absence of such an objective test to its advantage, tipping the scales of the
battle of the experts in its favor.
2
3
4
5
Appellate counsel’s failure to raise this claim on appeal was
deficient. Appellate counsel “unreasonably failed to discover nonfrivolous
issues” to appeal, and Hurles’s Ake claim was “clearly stronger than those
presented” on appeal. Smith v. Robbins, 528 U.S. 259, 285, 288, 120 S. Ct.
746, 145 L.Ed.2d 756 (2000) (internal quotation marks omitted). Hurles
also can show prejudice from this error, as the brain scan conducted after
trial showed brain damage. The Supreme Court held in Martinez that
“[a]llowing a federal habeas court to hear a claim of ineffective assistance
of [appellate] counsel when an attorney’s errors . . . caused a procedural
default in an initial-review collateral proceeding acknowledges, as an
equitable matter, that the initial-review collateral proceeding, if undertaken
. . . with ineffective counsel, may not have been sufficient to ensure that
proper consideration was given to a substantial claim.” Martinez, 132 S.
Ct. at 1318. We find cause sufficient to excuse the procedural default of
Hurles’s Ake claim and remand.
6
7
8
9
10
11
12
13
14
15
16
Hurles, 752 F.3d at 783.
The court then considered Hurles’ remaining ineffective
17
assistance of appellate counsel claims before concluding:
We remand for consideration by the district court in the first instance
Hurles’s claim that appellate counsel failed to raise the Ake claim on
appeal. The district court should afford Hurles an evidentiary hearing on
this issue if one is warranted and shall enter a new judgment on the
remanded claim.
18
19
20
21
22
Id. at 784.
23
The Court draws several conclusions from these passages. First, in finding cause
24
for the default, the Ninth Circuit has implicitly determined that PCR counsel’s
25
26
27
28
performance in failing to raise the appellate ineffective assistance of counsel claim was
both deficient and prejudicial. See Martinez, 132 S. Ct. at 1318; Clabourne, 745 F.3d at
377.
Next, although the first passage refers to the “procedural default of Hurles’s Ake
claim,” i.e. the claim that the trial court erred by denying Hurles’ pre-trial request for
- 20 -
1
neurological testing, Hurles, 752 F.3d at 783, it is clear that this Court is tasked with
2
“consideration of appellate counsel’s failure to raise” an Ake claim. Id. at 792; see id. at
3
784. Hurles raised the Ake claim in Claim 1 of his amended habeas petition, and the
4
Court found it procedurally defaulted and barred from review. (Doc. 73 at 7.) Its default
5
cannot be excused under Martinez, which applies only to defaulted claims of ineffective
6
assistance of trial or appellate counsel.5 See Pizzuto v. Ramirez, 783 F.3d 1171, 1177
7
(9th Cir. 2015) (explaining that the Ninth Circuit has “not allowed petitioners to
8
substantially expand the scope of Martinez beyond the circumstances present in
9
Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (denying
10
petitioner’s claim that Martinez permitted the resuscitation of a procedurally defaulted
11
Brady claim, holding that only the Supreme Court could expand the application of
12
Martinez to other areas). Therefore, contrary to Hurles’ argument, (Doc. 188 at 8), at
13
issue is Hurles’ claim of ineffective assistance of appellate counsel in failing to raise the
14
Ake claim, not the Ake claim itself.
15
Finally, the Ninth Circuit’s discussion of whether appellate counsel’s performance
16
was deficient under Strickland must have been intended only to support its determination
17
18
19
20
21
22
23
24
25
26
27
28
that the ineffective assistance of appellate counsel claim was “substantial” for purposes of
Martinez, because otherwise remand would serve no meaningful purpose. Accordingly,
the Court will undertake de novo review of Hurles’ claim of ineffective assistance of
appellate counsel.
A.
Ineffective Assistance of Appellant Counsel
In assessing the viability of an Ake claim, appellate counsel first was faced with
the fact that a motion for a brain mapping expert was not denied on its merits by the trial
court. Trial counsel abandoned her request for a neurological examination by failing to
file a non-ex parte motion as directed by the trial court. See McKinley v. Smith, 838 F.2d
5
Because the Court finds that Hurles’ claim of ineffective assistance of appellate
counsel for failing to raise the Ake claim is defaulted and barred, the Court need not
revisit its determination that the Ake claim itself is defaulted and barred. See Edwards v.
Carpenter, 529 F.3d 446, 453 (9th Cir. 2000) (holding that “an ineffective-assistance-ofcounsel claim asserted as cause for the procedural default of another claim can itself be
procedurally defaulted.”).
- 21 -
1
1524, 1528 (11th Cir. 1988) (explaining that under Ake the defendant must show that he
2
made a timely request to the trial court for expert assistance and that the request was
3
improperly denied). There is no suggestion that there was error in the trial court’s ruling
4
that the motion for a brain mapping expert was not appropriate for ex parte filing.
5
Therefore, on appeal the Arizona Supreme Court would have reviewed the Ake claim
6
under a fundamental error standard. See State v. Gendron, 812 P.2d 626, 627 (Ariz.
7
1991) (explaining that failure to raise an issue at trial waives the issue on appeal absent
8
fundamental error). To be fundamental, the error “must be clear, egregious, and curable
9
only via a new trial.” Id. at 628. Appellate counsel would have factored in the difficulty
10
of proving fundamental error when deciding which claims to raise. See Miller, 882 F.2d
11
1434.
12
Second, although the Supreme Court in Ake held that the State must, at a
13
minimum, assure the defendant access to a competent psychiatrist, it “limited the right”
14
to expert assistance to “the provision of one competent psychiatrist.” 470 U.S. at 79. The
15
Ninth Circuit has acknowledged this limitation. See Pawlyk v. Wood, 248 F.3d 815, 823
16
(9th Cir. 2001) (explaining that under Ake “due process guarantees a defendant access to
17
18
19
20
21
22
23
24
25
26
27
28
a single, competent psychiatrist”); cf. Vickers v. Stewart, 144 F.3d 613, 615 (9th Cir.
1998) (noting open question as to “whether the Constitution requires a State to provide an
indigent defendant access to diagnostic testing necessary to prepare an effective
defense”). As the Ninth Circuit explained in Leavitt v. Arave, 646 F.3d 605 (9th Cir.
2011):
By its own terms, Ake “limit[ed] the right [it] recognize[d]” to “provision of
one competent psychiatrist.” Ake, 470 U.S. at 79 (emphasis added). Given
this unambiguous language, we’ve held that the defendant “lacks the right
to appointment of a second psychiatrist,” Pawlyk v. Wood, 248 F.3d 815,
824 (9th Cir. 2001), even where the first psychiatrist is alleged to be
incompetent or reaches a diagnosis unfavorable to the defense. We’ve
recognized that Ake’s “limitation to a single, independent psychiatrist is
critical given that ‘[p]sychiatry is not . . . an exact science, and psychiatrists
disagree widely and frequently . . . on the appropriate diagnosis.’” Pawlyk,
248 F.3d at 823 (quoting Ake, 470 U.S. at 80). Accordingly, neither we,
nor the Supreme Court, has ever held that a trial court violated Ake by
- 22 -
1
2
3
4
5
6
refusing to appoint a second, let alone third, mental health expert.
Id. at 610 (additional citations omitted).
Citing Pawlyk and Leavitt, the Northern District of California recently rejected a
petitioner’s argument that “because there was insufficient funding for the two courtappointed psychiatrists to conduct additional neurological or neuropsychological testing
to confirm their opinions that Petitioner was incompetent, the examinations that the
7
psychiatrists did conduct were not ‘appropriate’ under Ake.” Marks v. Davis, 112 F.
8
Supp.3d 949, 962-63 (N.D. Cal. 2015). The district court reiterated that under Ake the
9
petitioner was entitled to one competent psychiatrist. Id. The court also noted that “the
10
Ninth Circuit has expressed doubt that a right to an ‘appropriate examination’ even
11
exists.” Id. at 963 (citing Leavitt, 646 F.3d at 610); see also Allen v. Mullin, 368 F.3d
12
1220, 1236-37 (10th Cir. 2004) (finding state trial court’s refusal to appoint
13
neuropsychologist to assist petitioner charged with murder did not violate due process
14
where court had already appointed expert).
15
Here, the trial court provided Hurles with a competent psychologist, Dr. Walter,
16
who examined Hurles and testified at trial, thus vindicating Hurles’ due process rights
17
under Ake. See Leavitt, 646 F.3d at 610 (“Due process does not require a state to fund
18
every technologically conceivable test to rule out the possibility of an organic mental
19
disorder.”) Given the holding in Ake and its progeny, appellate counsel reasonably could
20
have determined that no legitimate Ake claim arose from the trial court’s failure to
21
provide funding for an additional expert to conduct brain mapping procedures.
22
Finally, appellate counsel would have been aware of the limited utility of the brain
23
mapping results obtained by Dr. Duane, which showed only that Hurles suffered from a
24
“subtle and nonspecific abnormality” consistent with attention deficient disorder.
25
Although Hurles’ expert at sentencing reviewed the brain mapping, he did not testify
26
about its results, and counsel did not present the abnormality as a mitigating
27
circumstance. (See ROA 222, 226.)
28
Accordingly, although the Ninth Circuit found that Hurles raised a substantial
- 23 -
1
ineffective assistance of counsel claim, this Court finds based on these factors that
2
appellate counsel’s decision not to raise an Ake claim fell within the “exercise of
3
reasonable professional judgment.” Strickland, 466 U.S. at 690. Hurles has not shown
4
that appellate counsel’s failure to raise the Ake claim on appeal was objectively
5
unreasonable.
6
Moreover, even if appellate counsel’s performance was deficient, the Court finds
7
no prejudice resulting from the failure to raise the Ake claim. The factors discussed
8
above figure into the Court’s analysis of prejudice, which requires an assessment of
9
whether there was a reasonable probability relief would have been granted if appellate
10
counsel had raised the Ake issue.
11
In assessing such a claim, the Arizona Supreme Court would have applied Ake’s
12
“own terms,” Leavitt, 646 F.3d at 610, and found that Hurles’ due process rights were
13
satisfied by the appointment of Dr. Walter as a defense expert. Under any standard of
14
review, particularly fundamental error, there is not a reasonable probability that the
15
Arizona Supreme Court would have found the Ake claim meritorious.
16
17
18
19
20
21
22
As noted, Dr. Duane prepared a CTM report before the sentencing hearing. He
found “subtle nonspecific abnormalities in the left frontal area,” which were “associated
with mild processing difficulty.” (Doc. 25, Ex. 1.) At sentencing, the trial court held in
its special verdict:
As to statutory mitigating circumstances, number one set out in Arizona
Revised Statutes 12-703(G)(1), that is, the defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his conduct to the
requirements of law, was significantly impaired, but not so impaired as to
constitute a defense to prosecution has not been proved and does not exist.
23
24
25
26
27
28
(Ex. H, at 15-16.) The evidence was not sufficient to satisfy even the preponderance of
evidence burden with respect to the (G)(1) factor, which by definition is less burdensome
than the insanity standard.
In addition, the Arizona Supreme Court on appeal conducted “a thorough and
independent review of the record and of the aggravating and mitigating evidence to
determine whether the sentence is justified.” Hurles, 914 P.2d at 1299. The court held
- 24 -
1
that the mitigation was insufficient to warrant leniency in light of the “quality of the
2
aggravating circumstances.” Id. at 1300.
3
Because the Arizona Supreme Court found that the (G)(1) mitigating factor was
4
not proved, there is no reasonable probability that, if appellate counsel had raised the Ake
5
claim, the court would have found that the lack of additional testing affected the guilt-
6
phase verdict. To establish an insanity defense, Hurles was required to prove by clear
7
and convincing evidence that he suffered from a mental disease or defect such that he did
8
not know the nature and quality of his act or did not know that what he was doing was
9
wrong. A.R.S. § 13-502(A). Arizona law does not provide for a diminished capacity
10
defense. See Clark v. Arizona, 548 U.S. 735, 753 (2006) (rejecting challenge to the
11
constitutionality of Arizona’s “abbreviated” version of the M’Naghten standard). Having
12
determined, like the trial court, that the mitigating information was not sufficient to
13
satisfy the (G)(1) factor by a preponderance of the evidence, the Arizona Supreme Court
14
would not have found that it proved insanity by the higher standard of clear and
15
convincing evidence.
16
17
18
19
20
21
22
23
24
25
26
27
28
If it had been presented with an Ake claim, the Arizona Supreme Court would
have evaluated “the probable value of additional testing” and the “risk of erroneous
deprivation” of Hurles’ rights from denial of the testing. State v. Vickers, 768 P.2d at
1177, 1181-82 (Ariz. 1989) (citing Ake, 470 U.S. at 74). As already described, the brain
scan prepared for Hurles’ sentencing showed only that he suffered from a “subtle and
nonspecific abnormality” consistent with attention deficient disorder and mild processing
difficulties. These bran scan results were not helpful to Hurles’ insanity defense, and the
denial of such testing did not deprive Hurles of his rights. Evidence that Hurles suffered
only from the “subtle and nonspecific abnormality” identified by the CTM would not
have been consistent with Dr. Walter’s testimony that Hurles was psychotic at the time of
the crimes due to brain impairment. Moreover, given the circumstances of the crime,
including Hurles’ efforts to evade capture, the evidence did not support a finding that
Hurles was in a psychotic state and did not know that what he was doing was wrong.
In sum, given the weakness of the evidence of brain damage revealed by the CMT,
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1
together with the fact that Hurles’ rights were satisfied by the appointment of a competent
2
expert, there is no reasonable probability that the Arizona Supreme Court would have
3
reversed Hurles’ conviction if appellate counsel had raised an Ake claim.
4
B.
5
Hurles asserts that the Ninth Circuit’s opinion “strongly suggests” that the court
6
ruled on the merits of the ineffective assistance appellate counsel claim. (Doc. 188 at 9.)
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He argues, therefore, that this Court either should grant relief or order an evidentiary
8
hearing on the Ake issue. (Id. at 10.) Respondents contend that an evidentiary hearing is
9
not required to resolve the ineffective assistance of appellate counsel claim. (Doc. 190 at
10
Evidentiary hearing
11-12.) The Court agrees.
11
The Ninth Circuit held that “[t]he district court should afford Hurles an evidentiary
12
hearing on this issue if one is warranted.” Hurles, 752 F.3d at 784. An evidentiary
13
hearing is not warranted here because the record is complete with respect to appellate
14
counsel’s performance. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (explaining
15
that an evidentiary hearing is not necessary where claim can be resolved on state court
16
record); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (finding petitioner not
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entitled to evidentiary hearing where ineffective assistance claim could be “resolved by
reference to the state court record”). “When a claim of ineffective assistance of counsel
is based on failure to raise issues on appeal, . . . it is the exceptional case that could not be
resolved on an examination of the record alone.” Gray v. Greer, 800 F.2d 644, 647 (7th
Cir. 1986).
Hurles contends an evidentiary hearing is necessary to allow him “to present the
evidence he was wrongly denied from presenting at trial.” (Doc. 188 at 10.) The CTM
brain mapping results are in the record, however, and Hurles has not identified any
disputed facts that would be relevant to a review of appellate counsel’s performance.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant
cannot take an appeal unless a certificate of appealability has been issued by an
appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases
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1
provides that the district judge must either issue or deny a certificate of appealability
2
when it enters a final order adverse to the applicant. If a certificate is issued, the court
3
must state the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
4
Under § 2253(c)(2), a certificate of appealability may issue only when the
5
petitioner “has made a substantial showing of the denial of a constitutional right.” This
6
showing can be established by demonstrating that “reasonable jurists could debate
7
whether (or, for that matter, agree that) the petition should have been resolved in a
8
different manner” or that the issues were “adequate to deserve encouragement to proceed
9
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
10
11
The Court finds that reasonable jurists could debate its resolution of Hurles’
judicial bias claim and his ineffective assistance of appellate counsel claim.
CONCLUSION
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13
Based on the foregoing,
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IT IS ORDERED that Petitioner Hurles’ claim of judicial bias is DENIED.
15
IT IS FURTHER ORDERED that Hurles’ claim of ineffective assistance of
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appellate counsel is DENIED.
IT IS FURTHER ORDERED granting a certificate of appealability on Hurles’
judicial bias claim and his ineffective assistance of appellate counsel claim.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly.
Dated this 19th day of May, 2016.
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Douglas L. Rayes
United States District Judge
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