D.W. NELSON, Senior Circuit Judge:
Richard D. Hurles appeals the district court's denial of his petition for a writ of habeas corpus from his murder conviction and death sentence. He argues the district court erred on four issues: judicial bias, ineffective assistance of sentencing counsel, ineffective assistance of appellate counsel, and procedural default (related to portions of his ineffective assistance of counsel claims).
For the reasons set forth below, we reverse the district court's denial of Hurles's judicial bias claim. The highly unusual facts of this case — in which the trial judge became involved as a party in an interlocutory appeal, was denied standing to appear as an adversary, and then proceeded to preside over a murder trial and single-handedly determine Hurles's death sentence — compel us to conclude that Hurles was denied his right to due process. These exceptional facts raise the probability of actual bias to an unconstitutional level.
Because counsel requested only a new sentencing at oral argument, rather than a new trial, we remand to the district court with instructions to grant a writ of habeas corpus as to Petitioner's sentence unless the State of Arizona elects, within 90 days of the issuance of the mandate, to resentence Petitioner before a jury and presided over by a judge other than Judge Hilliard, within a reasonable time thereafter to be determined by the district court. We do not reach Hurles's remaining claims, as they are now rendered moot by the relief we grant for his judicial bias claim.
On November 12, 1992, just a few months after Hurles was released from thirteen years of incarceration for previous crimes, eyewitnesses placed him at the Buckeye Public Library around 2:00 p.m. One witness saw him in the children's section just before she left at approximately 2:30 p.m. She observed him "stare" at her, and she smelled alcohol from feet away. When the last witness left the library, the only two people remaining were Hurles and Kay Blanton, the librarian. By about 2:45 p.m., when visitors attempted to enter the library, they found the
Dr. Walter, a defense expert, described Hurles's account of that time:
Another witness saw Hurles leave the library through the back door and followed him down the street, where they had a brief conversation. State v. Hurles, 185 Ariz. 199, 914 P.2d 1291, 1293-94 (1996). Hurles then went home on a borrowed bicycle and requested that his nephew Thomas drive him to a Phoenix bus station. Id. On the way, Hurles dumped his bloody clothes along the side of the road. Id. After dropping Hurles off, Thomas later helped police find the discarded clothes, and Hurles was arrested on a bus headed to Las Vegas. Id.
In the library, Blanton was found with her clothes removed from the waist down and thirty-seven stab wounds on her body. Id. at 1293. The weapon was a paring knife Hurles had found in the library. Id. She was still conscious when paramedics arrived at the scene, after having attempted to reach a phone. Id. at 1299. She was transferred to the hospital and died shortly thereafter.
Richard Hurles was arrested and charged with first degree premeditated murder, first degree felony murder, burglary, and attempted sexual assault. Because he was indigent, the court appointed an attorney to represent him. When the prosecution decided to seek the death penalty, Hurles's attorney made an ex parte request to Judge Hilliard, the trial judge, for the appointment of co-counsel. The practice of designating at least two attorneys for capital cases was standard at the Maricopa County Public Defender's Office.
Under Arizona law, a trial judge is a nominal party in special action proceedings. However, this nomenclature is a "mere formality" warranting no action on the part of the judge. State ex rel. Dean v. City Court, 123 Ariz. 189, 598 P.2d 1008, 1011 (App.1979); see also Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1, 2 (App.1993). In this case, however, Judge Hilliard appeared and filed a responsive pleading defending her ruling. The judge was represented in the special action by Colleen French from the Arizona Attorney General's Office. As Ms. French admitted in later proceedings, she had at least some
In her responsive pleading, Judge Hilliard commented on the overwhelming evidence of guilt the state had assembled against Hurles, evidence which rendered the case "very simple and straightforward." In addition, Judge Hilliard questioned the competence of Hurles's attorney, stating, "Clearly there are other attorneys who provide contract services for Maricopa County who would be able to provide competent representation in a case as simple as this." These comments took place months before any evidence had been presented in the case.
The Arizona Court of Appeals published a decision denying Judge Hilliard standing to appear in the special action and ruling it improper for judges to file pleadings in special actions solely to defend the correctness of their decisions. Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1 (App. 1993). Addressing Judge Hilliard's participation specifically, the court held that it was "of the inappropriate `I-ruled-correctly' sort," which violated the "essential [principle] to impartial adjudication" that judges must have "no personal stake — and surely no justiciable stake — in whether they are ultimately affirmed or reversed." Id. at 4 (emphasis in original). The court then declined jurisdiction over the petition. Id.
Despite the Court of Appeals's ruling that Judge Hilliard had acted improperly, she continued to preside over Hurles's trial. On April 14, 1994, a jury found Hurles guilty of all charges.
Judge Hilliard then conducted an aggravation/mitigation hearing on September 30, 1994, to hear evidence regarding Hurles's recommended sentence. Under Arizona's capital sentencing scheme at the time, Judge Hilliard was the sole arbiter of Hurles's sentence. No jury participated in determining his sentence.
Hurles's counsel offered the following evidence regarding a number of alleged mitigating factors, including diminished capacity, dysfunctional family background, low intelligence and lack of education, and good behavior while incarcerated:
Richard Hurles was born into a family of poor migrant farm workers as one of nine children and eight sons.
Richard's father John was an abusive alcoholic and sexual predator, and he passed these traits on to most of the Hurles children. John molested his only daughter Debbie for many years until she escaped into foster care. According to Edith Hurles (the ex-wife of one of Richard's brothers), John also saw no problem with forcing women to have sex with him, believing that "if a man wanted a woman, he should take her. If she did not want it, force her." John raped Richard's first girlfriend after forcing Richard to pull the car over so that he could take her out by the side of the road. John also routinely beat the children with a leather belt or a switch from a tree, and on one occasion he bashed one of his children over the head with a hammer. Richard's mother Irene
Richard began drinking alcohol and sniffing paint, glue, and gasoline at age nine. John taught his sons to drink at early ages and fed at least one of the children vodka as a toddler; alcohol and drug abuse were never discouraged. As Richard explained, "[I]t was routine for three or four of us to be high on alcohol, marijuana, or cocaine." Dr. Stonefeld testified during the pre-sentence hearing that "[t]he norm in [Hurles's] family was abuse of alcohol." Richard's education ended permanently in the seventh grade after he was caught sniffing paint on school property. He sniffed paint once or twice per week beginning at age twelve. At age fourteen, Richard added approximately five marijuana joints per week to his drug intake, and he began experimenting with other drugs, including mushrooms and heroin. At fifteen, he began snorting three to four lines of cocaine and smoking twenty-five marijuana joints per week and increased his alcohol intake to a six-pack of beer per week. By the ages of sixteen to seventeen, "[h]e [drank] approximately a case of beer, two to three fifths of wine, two pints of whiskey, smoked eighty marijuana joints, and snorted two grams or twelve lines of cocaine each week." He maintained this level of drug abuse until he was first incarcerated. At that time he reported to Dr. Tuchler that he was "drinking all day if he ha[d] the money."
Richard has reported hearing voices giving him violent commands intermittently since age seventeen. During his first stint in prison in 1978, he was prescribed an anti-psychotic drug, Mellaril, to suppress the voices. He later took the same drug again in prison after the murder in 1993. Hurles has stated that he heard voices telling him to "push other inmates down the stairs." He avoided stairs so that he would not do what the voices told him to do.
Most doctors who have examined Hurles have found him mentally and emotionally wanting. Dr. Bendheim, who examined him in 1978 relating to child molestation criminal proceedings, described him as "mentally retarded and illiterate." Dr. Tuchler concluded at the same time that Hurles was incompetent to stand trial due to his "sociocultural and intellectual defect[s]" and "borderline mental retardation." He was housed in the prison's section for the mentally retarded for over half of the thirteen years he was in jail for previous crimes. Dr. Walter, who examined him in 1993, described him as "showing significant levels of neuropsychological deficit" and an "overall degree of dysfunction... which represents performance in the `brain damaged range.'" Dr. Walter also thought he likely suffered from both depression and a thought disorder. Dr. Walter's battery of neuropsychological testing placed Hurles "in the brain damage range in six out of seven measures felt to be most sensitive to brain functioning." Post-conviction testing revealed an abnormality in the left frontal lobe of his brain.
Dr. Walter concluded that alcohol and drug abuse have a more pronounced effect on someone with Hurles's developmental limitations, exacerbating his mental deficits and leading to "more blatant cerebral dysfunction." Similarly, Dr. Bendheim explained, "This type of intoxication in a mentally retarded person further reduces his judgment, his capacity to adhere to the norms of society and of the law and to fully appraise the nature and consequences of his action[s]...." He even opined, relating to Hurles's conviction for child molestation, "According to the history as I was
In addition to affecting his judgment, drug abuse has also had an impact on his memory. Dr. Stonefeld explained in his September 9, 1994 evaluation that Hurles "has significant memory problems with large gaps in events and time sequences. These episodes are largely related to periods of intoxication." Indeed, Hurles would sometimes lose time when high on inhalants, including, as he reported to Dr. Bendheim in 1978, "[o]ne time after sniffing paint [when] he found himself in Buckeye for two days without remembering how he got there."
In contrast to his behavior outside prison, Hurles received glowing reviews from prison staff who worked closely with him during his long term with the Arizona Department of Corrections. Staff described him as "very, very compliant," "a very good worker" who "remember[ed] daily tasks" and whose "attendance was always good," and someone who "was never out of control" and never "displayed any... problems controlling his temper." Richard received numerous evaluations from prison staff describing him as "excellent." One staff member commented specifically, "Richard has demonstrated his ability to function well while in prison." Marilynn Windust, a Correctional Program Officer specializing in mental health and primary substance abuse at the Arizona Department of Corrections while Hurles was imprisoned there, worked with Hurles daily for two years. She stated that, to her knowledge, he had never received disciplinary infractions or had any difficulty complying with prison programs. Dr. Stonefeld considered it consistent with his diagnoses of Hurles that he did and could thrive in the "structured, very orderly" environment of the prison system.
Following the aggravation/mitigation hearing, Judge Hilliard — as the sole sentencer — sentenced Hurles to death on October 13, 1994. The Arizona Supreme Court affirmed on direct appeal. State v. Hurles, 185 Ariz. 199, 914 P.2d 1291 (1996).
Hurles filed his first petition for post-conviction review ("PCR") on January 8, 1999, alleging four claims, including both ineffective assistance of counsel claims raised in this appeal. Judge Hilliard again presided over this PCR, and Colleen French from the Attorney General's Office — Judge Hilliard's attorney in the prior special action proceeding — represented the State. Judge Hilliard denied the PCR, and the Arizona Supreme Court affirmed without comment.
Hurles began federal habeas proceedings in 2000, but then returned to state court to file a second PCR raising additional claims, including judicial bias and new ineffective assistance of counsel claims. He requested Judge Hilliard's removal from the case and was denied. Judge Hilliard then denied his second PCR. The Arizona Supreme Court affirmed without comment.
Hurles filed an amended petition for habeas corpus in the District of Arizona, raising ten claims. The district court denied most of them as procedurally barred. After additional briefing, the district court dismissed the remainder of Hurles's claims. The district court then certified four issues for appeal to this Court.
This Court reviews the district court's decision to deny a 28 U.S.C. § 2254
When reviewing decisions of the Arizona state courts, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to any petition filed after April 24, 1996. 28 U.S.C. § 2254; see also Woodford v. Garceau, 538 U.S. 202, 204, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a federal court may grant relief if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In addition, a federal court may grant relief with respect to the factual findings of the state court if those findings were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). If the "state court's fact-finding process survives this intrinsic review," its "findings are dressed in a presumption of correctness" under Section 2254(e)(1). Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004).
Petitioner argues that the trial judge should have recused herself from his criminal proceedings after she became an active party in his interlocutory appeal. Her continued involvement with his case, he contends, denied him due process of law. Given the judge's conduct in the special action proceeding, which the Arizona Court of Appeals specifically deemed improper, the potential for bias was unconstitutionally high. Therefore, we reverse the district court's denial of Hurles's claim.
"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Indeed, the "legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship." Mistretta v. United States, 488 U.S. 361, 407, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). This most basic tenet of our judicial system helps to ensure both litigants' and the public's confidence that each case has been fairly adjudicated by a neutral and detached arbiter. An appearance of impropriety, regardless of whether such impropriety is actually present or proven, erodes that confidence and weakens our system of justice.
While most claims of judicial bias are resolved "by common law, statute, or the professional standards of the bench and bar," the Due Process Clause of the Fourteenth Amendment "establishes a constitutional floor." Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (citations omitted). To safeguard the right to a fair trial, the Constitution requires judicial recusal in cases where "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). "The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Caperton v. A.T. Massey Coal Co., ___ U.S. ____, 129 S.Ct. 2252, 2262, 173 L.Ed.2d 1208 (2009) (internal quotation marks omitted).
Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927).
A claimant need not prove actual bias to make out a due process violation. Johnson v. Mississippi, 403 U.S. 212, 215, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). Indeed, the Supreme Court has pointed out that it would be nearly impossible for a litigant to prove actual bias on the part of a judge. Caperton, 129 S.Ct. at 2262-63; see also Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) ("[W]hen the trial judge is discovered to have had some basis for rendering a biased judgment, his actual motivations are hidden from view, and we must presume the process was impaired." (citing Tumey, 273 U.S. at 535, 47 S.Ct. 437).) It is for this reason that the Court's precedents on judicial bias focus on the appearance of and potential for bias, not actual, proven bias. Due process thus mandates a "stringent rule" for judicial conduct, and requires recusal even of judges "who would do their very best to weigh the scales of justice equally" if the risk of bias is too high. Murchison, 349 U.S. at 136, 75 S.Ct. 623.
In determining what constitutes a risk of bias that is "too high," the Supreme Court has emphasized that no mechanical definition exists; cases requiring recusal "cannot be defined with precision" because "[c]ircumstances and relationships must be considered." Id.; see also Lavoie, 475 U.S. at 822, 106 S.Ct. 1580 (internal citations omitted). The Supreme Court has just re-affirmed this functional approach. See Caperton, 129 S.Ct. at 2265-66.
The Court's call for pragmatism is particularly important in this instance, for capital cases mandate an even "greater degree of reliability" than other cases do. Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). We are compelled to acknowledge "that the penalty of death is qualitatively different" from any other penalty and that "there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment." Woodson, 428 U.S. at 305, 96 S.Ct. 2978. As required by the Supreme Court, we therefore utilize a functional approach to the facts of this case as they relate to the Court's established case law.
The Supreme Court's judicial bias doctrine has evolved as it confronts new scenarios "which, as an objective matter, require recusal." Caperton, 129 S.Ct. at 2259. The most basic example of probable bias occurs when the judge "`has a direct, personal, substantial pecuniary interest in reaching a conclusion against [one of the litigants].'" Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir.2007) (quoting Tumey, 273 U.S. at 523, 47 S.Ct. 437). The Court has also held that other financial interests
AEDPA applies to any claim "adjudicated on the merits" by a state court, 28 U.S.C. § 2254(d), meaning the state court decision "rest[ed] on substantive, rather than procedural, grounds." Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir.2004). The applicable state court decision is the "last reasoned decision" addressing a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005) (citations omitted). Because the Arizona Supreme Court summarily denied Hurles's appeal on this claim without comment, we "look through" that opinion to the last reasoned decision, Judge Hilliard's denial of Hurles's second PCR. Ylst v. Nunnemaker, 501 U.S. 797, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Ordinarily, the state court's factual findings would be entitled to a presumption of correctness under AEDPA. 28 U.S.C. § 2254(e)(1). However, such deference is only warranted if the state court's fact-finding process survives the intrinsic review of Section 2254(d)(2). See Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004). In other words, the state court decision must not be "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2).
In this case, the state court fact-finding process was fundamentally flawed. Judge Hilliard granted no evidentiary hearing or other opportunity for Hurles to develop his claim. Hurles had alleged that Judge Hilliard was improperly involved in the special action proceeding before the Arizona Court of Appeals, in which Hurles had appealed her denial of his request for additional counsel. As discussed above, Judge Hilliard filed a responsive pleading through her counsel, the Arizona Attorney General's Office, arguing the merits of her decision. Hurles alleged that statements in Judge Hilliard's brief were attributable to her, and that the brief contained inappropriate statements about the merits of Hurles's case and the competence of his attorney before trial had begun. He argued that Judge Hilliard's involvement in the special action — which the Court of Appeals had found improper — rendered her unfit to continue presiding over his trial and sentence and that she should have recused herself.
Instead of providing a forum for Hurles to present and develop evidence to establish his claim, Judge Hilliard "found" facts based on her own recollections and factual
We have repeatedly held that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, "the fact-finding process itself is deficient" and not entitled to deference. Maddox, 366 F.3d at 1001 ("If, for example, a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an `unreasonable determination of the facts.'"); see also Perez v. Rosario, 459 F.3d 943, 950 (9th Cir.2006) ("In many circumstances, a state court's determination of the facts without an evidentiary hearing creates a presumption of unreasonableness.") (citations omitted); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003), cert. denied, 543 U.S. 1038, 125 S.Ct. 808, 160 L.Ed.2d 605 (2004) ("[W]ith the state court having refused [petitioner] an evidentiary hearing, we need not of course defer to the state court's factual findings — if that is indeed how those stated findings should be characterized — when they were made without such a hearing."); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002), cert. denied, 537 U.S. 1179, 123 S.Ct. 992, 154 L.Ed.2d 927 (2003) ("Having refused [petitioner] an evidentiary hearing on the matter, the state cannot argue now that the normal AEDPA deference is owed the factual determinations of the [state] courts."); Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir.1999) (finding no deference warranted where factual findings "were not subject to any of the usual judicial procedures designed to ensure accuracy" because "[t]he judge was not under oath when he wrote the letter, the bailiff was not under oath when relaying her account of events to the judge, and neither the judge nor the bailiff was ever questioned by counsel for either side"); cf. Fero v. Kerby, 39 F.3d 1462, 1479 n. 24 (10th Cir.1994) ("[Petitioner] raised the issue of judicial bias in his first post-trial motion for a new trial and had the benefit of an evidentiary hearing on that claim."). This case presents an especially compelling example of a defective fact-finding process, where the facts "found" by Judge Hilliard involved her own conduct and her
The dissent suggests that we are re-casting legal disputes as factual ones in order to escape the constraints of AEDPA. However, we are bound to confront factual disputes relevant to this claim. Judge Hilliard's resolution of Hurles's due process claim was predominantly a factual one. She did not review her participation in the special action and the statements in her brief and conclude that they did not constitute a potential for bias, nor did she review the Arizona Court of Appeals's decision and conclude that it indicated no unconstitutional potential for bias. Rather, she supplied additional facts that, in her judgment, rendered her conduct proper and prevented the brief's contents from being attributable to her. See Minute Entry at 2 ("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.") (emphasis added). None of these facts was established by the record. To the contrary, Hurles contended that Judge Hilliard had "injected [her]self as a direct adversary" in the special action, that she "filed her own substantive response" in the proceeding, that she knew the contents of the briefing filed in her name, and that those contents were therefore attributable to her. The Arizona Court of Appeals explicitly noted that the record was ambiguous as to Judge Hilliard's involvement; the Attorney General had noted at oral argument that the Judge was not involved, but there was no other evidence to that effect and the brief was filed in the Judge's name. See Hurles, 849 P.2d at 2 & n. 2.
Thus, while the dissent appears to characterize Judge Hilliard's decision as solely a legal determination based on undisputed facts, Judge Hilliard's own (factual) reasoning belies that characterization of this case. Indeed, she clarifies in her order that the defect in Hurles's due process claim is a lack of sufficient "factual evidence to support his allegations," but she then fails to afford him a hearing or other opportunity to develop such factual evidence. Minute Entry at 2. The dissent relies on Judge Hilliard's own description of events, which were not tested or challenged through cross-examination, in its description of the relevant facts. See Dissent at 1332. Thus, the dissent adopts one disputed view of the facts at issue here and then claims they are undisputed.
Moreover, Judge Hilliard herself presided over the collateral proceedings, evaluating Hurles's claims regarding her own alleged misconduct during trial and sentencing. While judges frequently consider contemporaneous motions for recusal based on their own alleged conflicts of interest, the Supreme Court has noted the inherently problematic nature of reviewing such inquiries. See Caperton v. A.T. Massey Coal Co., ___ U.S. ____, 129 S.Ct. 2252,
Based on these flaws in the state court's fact-finding process, we find the state court decision resulted in an "unreasonable determination of the facts" and is not entitled to a presumption of correctness under AEDPA. See Maddox, 366 F.3d at 999 (explaining that application of the "`unreasonable determination' clause" is appropriate to situations in which "the process employed by the state court is defective") (citations omitted). We therefore turn to consider Hurles's judicial bias claim.
In this case, at least three problems raise an unconstitutional potential for bias given Judge Hilliard's later role as the sole arbiter of Hurles's sentence: (1) her unnecessary and improper participation in the special action to defend her own ruling against the defendant
In addition, whether Hurles would have been better served by seeking Judge Hilliard's recusal earlier, or whether the Arizona Court of Appeals should have sought her recusal, does not control our current evaluation of the claim. The burden is on the judge to disqualify herself, even if a party never seeks recusal. See 17A Ariz.Rev.Stat. Sup.Ct. Rules, Rule 81, Code of Jud. Conduct, Rule 2.11(A) ("A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.") (emphasis added); see also, e.g., 28 U.S.C. § 455(a) (same). Furthermore, Hurles has raised ineffective assistance of counsel claims with regard to both his trial and appellate counsel. We do not reach or decide these claims because the judicial bias claim is dispositive, but we hesitate to lend persuasive weight to the fact that he did not raise his judicial bias claim while represented by those attorneys.
Judge Hilliard injected herself into a special action proceeding in which Hurles appealed her denial of his request for additional counsel and argued that she had abused her discretion. As noted above, while special action proceedings in Arizona require the trial judge to be named as the nominal respondent, this is typically a mere formality and does not warrant any response or active participation by the judge. Hurles, 849 P.2d at 2. In this case, however, Judge Hilliard filed a responsive pleading through her counsel, the Arizona Attorney General's Office, arguing the merits of her decision.
The Arizona Court of Appeals issued a published opinion denying the judge's standing to appear in the special action and finding that her responsive pleading was improper. Id. at 4. Specifically, the court held that judges may not file responsive pleadings in special action proceedings solely to make "I-ruled-correctly" arguments. Id. Such conduct, the court found, transformed the judge's role from that of an impartial arbiter to that of an adversary. Specifically, the court characterized this kind of intervention as follows:
Id. at 3 (quoting State ex rel. Dean v. City Court, 123 Ariz. 189, 598 P.2d 1008, 1010 (App.1979)). The court thus ruled that her conduct was improper because it threatened a "principle ... essential to impartial adjudication," that judges have "no personal stake — and surely no justiciable stake — in whether they are ultimately affirmed or reversed." Id. at 4 (emphasis in original). Despite this ruling, Judge Hilliard continued to preside over Hurles's trial and unilaterally determined his death sentence after he was convicted.
Respondent argues that Judge Hilliard was a mere nominal party in the special action proceedings. However, the Arizona Court of Appeals's decision specifically drew a distinction between judges who behave as "nominal" parties and those who, despite the fact that no response or appearance is required, nonetheless appear and submit arguments on their own behalf. The court then determined that, within the category of the more active parties, some kinds of responses are proper (those based on administrative or policy-based arguments) and some are improper (those that defend the judge's decision against the petitioner's claim). Id. at 3. Thus, the Court of Appeals found that Judge Hilliard was neither a standard nominal party, nor an appropriate active party. Instead, it agreed with the Dean court's assessment that participation such as Judge Hilliard's in the special action transformed the trial judge into "an adversary and an advocate." Id. at 3.
The dissent argues that we overstate the Arizona Court of Appeals's characterization of Judge Hilliard's participation in the special action as "improper"; rather, according to the dissent, the court "merely resolved two competing lines of authority and determined that a trial judge lacks standing to defend a specific ruling in a special action proceeding." Dissent at 1328. This is a strained reading of the Court of Appeals's opinion. That its decision was an important and strong rebuke of active judicial participation in special actions is apparent from Judge Hilliard's statement in her later Minute Entry that "judges no longer file an `improper' response in special actions since the court's decision in Hurles v. Superior Court." Minute Entry at 3. Indeed, even the Arizona Attorney General's Office, which represented Judge Hilliard in the special action, conceded that the Court of Appeals's opinion was concerned with protecting the impartiality of judicial proceedings that was threatened by participation such as Judge Hilliard's. See Opp. to Mot. to Recuse at 2, Hurles v. Schriro, No. CIV-00-0118-PHX-RCB (D.Ariz.2008), ECF 72-6 at 24 ("The [Arizona Court of Appeals] held that ... it is improper for a judge to [act as Judge Hilliard did].... The court reasoned that when a judge responded to a special action and claimed that he or she had ruled correctly, it placed the judge at odds with the party who filed the special action, which might affect the perception of impartiality of the proceedings.") (emphasis added) (internal citations omitted).
Respondent argues that regardless of how we classify Judge Hilliard's participation, we should not consider statements in the responsive pleading to be statements by the judge. However, while
Even if we accept Judge Hilliard's averment that she had no direct involvement in the special action, however, we may still properly attribute statements in the brief to her for at least two reasons. First, the responsive pleading was in the judge's name, as stated in the introduction.
Second, petitions for review in the Arizona Supreme Court challenging the Court of Appeals's decision in the special action refer to the Judge's responsive pleading with the presumption that they are her arguments, just as the statements of counsel are always the statements of the client. The presiding criminal judge of the Maricopa County Superior Court, Ronald S. Reinstein, petitioned for a special action to the Arizona Supreme Court following the Court of Appeals's ruling in Hurles v. Superior Court in order to defend a judge's ability to appear in such proceedings. See Pet. for Special Action, CV-93-0135-SA (Apr. 20, 1993). In that petition, Judge Reinstein referred to the pleadings in the Hurles special action as "Judge Hilliard's response," id. at 6, and highlighted the direct participation of judges in defending their rulings or policies in special action proceedings. Judge Reinstein's petition makes no distinction between the judge
The Arizona Attorney General, Grant Woods, also petitioned the Arizona Supreme Court for a special action following the Court of Appeals's ruling, seeking to have the court decide whether the Attorney General's Office could continue to represent judges in special action proceedings given the court's concern over potential conflicts of interest. Pet. for Special Action, CV-93-0134-SA, at 5-6 (Apr. 20, 1993). The petition argues that if the Attorney General cannot represent judges, they would have to appear themselves or hire private counsel. Id. This presumes a standard attorney-client relationship in which the primary actor is the client, Judge Hilliard, not the Attorney General, her counsel. Therefore, we conclude that statements in the brief are properly attributable to Judge Hilliard.
In addition to the fact of Judge Hilliard's participation, the brief itself contains numerous troubling statements about the merits of Hurles's case. These statements display a familiarity with, and prejudgment of, the facts of his case long before any evidence had actually been presented. Judge Hilliard's brief describes the nature of Hurles's case, concluding that it was "very simple and straightforward," with an over whelming amount of evidence assembled to demonstrate his guilt for the "brutal murder." While any judge would need to make a determination as to whether additional counsel is needed by evaluating the relative complexity of a case, here it is the manner in which Judge Hilliard dismissed Hurles's case as "simple" that is problematic. Rather than discussing the simplicity of the case with reference to the number of expert or percipient witnesses that would need to be prepared, the number of trial days the case would likely call for, or other content-neutral factors, Judge Hilliard referred to the case as "simple" because the state had already purportedly amassed overwhelming evidence of guilt against the defendant. She writes:
This description leads to only one conclusion. According to Judge Hilliard, the case was simple because he was obviously guilty.
The dissent's contention that the proceeding "involved an evaluation of the evidence only for purposes of determining whether a second counsel was necessary" assumes the conclusion it wishes to draw. Dissent at 1329-30. Judge Hilliard's analysis is quite different from, for example, a detached determination that the case was
Judges are free to form opinions based on evidence presented in the same or earlier cases involving the litigant in question without offending notions of due process. See Crater v. Galaza, 491 F.3d 1119, 1130-32 (9th Cir.2007) (finding no due process violation where the judge's opinions as to the likelihood of a guilty verdict against defendant was based on evidence presented in an earlier, now complete, proceeding against his co-defendant for the same incident). In this case, however, the judge's opinions were formed long before trial and before any evidence had been presented. Indeed, the brief presumes that the State's amassed evidence is virtually unassailable, for if there were flaws in the scientific evidence, then the time required to prepare a vigorous defense would be much more significant than Judge Hilliard suggests.
Finally, Judge Hilliard challenged the professionalism of Hurles's attorney, whose credibility would later be important as Hurles's sole counsel during the trial and sentencing proceedings. She argued that the attorney's insecurity over handling the case on her own placed her competence in doubt. Judge Hilliard stated:
This point was entirely superfluous to the brief and appears designed merely to question the competence of an attorney who determined she needed assistance in a capital case. Indeed, in addition to questioning her competence in this particular case, the brief even raises the prospect that this attorney should no longer receive gainful employment from Maricopa County if she did not have the "personal competence" to do so. After having raised questions about Hurles's only legal counsel in pleadings to the Arizona Court of Appeals, Judge Hilliard then had sole responsibility for determining the credibility of mitigating evidence presented by that attorney. Taken together with her comments about the merits of Hurles's case, such direct prejudgment raises an unconstitutional probability of bias.
Based on these three deficiencies flowing from the special action proceeding, the "average" judge would be tempted "not to hold the balance nice, clear, and true." Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927). Judge Hilliard's conduct falls within the parameters of behavior prohibited by clearly established Supreme Court precedent. In Murchison, for example, the Court found an appearance of bias where the judge who had acted as a "one-man grand jury" later presided over the defendant's contempt trial relating to his conduct before the judge in that grand jury. In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (1955). The Court determined that "the judge had a conflict of interest at the trial stage because of his earlier participation followed by his decision to charge them." Caperton v. A.T. Massey Coal Co., ___ U.S. ____, 129 S.Ct. 2252, 2261, 173 L.Ed.2d 1208 (2009) (describing the holding of Murchison). Similarly, in Johnson v. Mississippi, the Court evaluated a judge's fitness to preside over the petitioner's criminal contempt proceeding. 403 U.S. 212, 215, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971). The judge had previously been named as a defendant in a separate civil rights suit brought by the petitioner, and subsequently made "intemperate remarks" about civil rights litigants. Id. Based on the judge's status as an adversary in the petitioner's civil rights suit and his remarks about litigants such as the petitioner, the Court determined that he was too "enmeshed in matters involving [the] petitioner" to preside over his contempt proceeding. Id.
As in Murchison and Johnson, here the Judge's conflict of interest at the trial and sentencing stages arose from her "earlier participation" as a direct party in the special action proceeding. Caperton, 129 S.Ct. at 2261. The Murchison Court distinguished these circumstances from one in which a judge simply responded to conduct in open court. Murchison, 349 U.S. at 137, 75 S.Ct. 623. Similarly, Judge Hilliard's initial denial of the motion for additional counsel is not the basis for any claim of bias, nor was her status as a nominal respondent in the special action. Rather, it was her direct participation in the special action that made her "part of the accusatory process" and rendered her ineligible to preside over the remainder of Hurles's case. Id.
Second, the fact that Hurles initiated the special action proceeding and Judge Hilliard did not have a direct prosecutorial role is of no import. Indeed, we find no authority for the proposition that whether a judge affirmatively creates the conflict determines whether she can proceed impartially. Johnson itself involved a judge who had been named as a defendant in the petitioner's civil rights suit. Johnson, 403 U.S. at 215, 91 S.Ct. 1778. Murchison likewise does not state that the judge must be the initiator or instigator of the accusatory process; it states instead that she must recuse herself if she becomes "part" of the accusatory process. A defendant such as Judge Hilliard is still part of the process to the extent that she was an adversary in the special action and then proceeded to preside over Hurles's trial and single-handedly determine his sentence. See also Smith v. Lockhart, 923 F.2d 1314, 1322 n. 12 (8th Cir.1991) (finding that judge should have disqualified himself because he had been "a defendant in Smith's federal class action suit"); United States v. Meyer, 462 F.2d 827, 842 (D.C.Cir.1972) (emphasis added) ("Thus, the trial judge, by virtue of his status as a defendant in a suit brought by the alleged contemnor, was in an adversary posture with respect to him, and was presumptively biased. This is true even though the judge's status as an adversary party was created by an action of the alleged contemnor (filing suit)...."). Whether Judge Hilliard was a plaintiff or defendant in the action at issue is thus irrelevant; what matters is her adversarial posture toward Hurles.
Finally, the Supreme Court has never required evidence of "personal animus" in order to demonstrate judicial bias. Though the Johnson Court made note of the judge's "intemperate remarks ... concerning civil rights litigants," Johnson, 403 U.S. at 215, 91 S.Ct. 1778, it grounded its holding in the fact that the judge had previously been an adversary in the petitioner's civil rights suit. This comports with the Court's longstanding rule, which the dissent recognizes, that a petitioner need not demonstrate actual bias in order to succeed on his claim. See Caperton, 129 S.Ct. at 2262-63. Moreover, as discussed above, Judge Hilliard also made inappropriate statements in her response brief, statements which suggested she had prejudged the strength of Hurles's case. That Johnson happened to involve more direct evidence of personal animus does not render it inapplicable here.
Respondent's position that Judge Hilliard "prevailed" in the special action, and therefore had no incentive to be biased against Hurles, is both misleading and logically unsound. While the Court of Appeals declined to exercise jurisdiction over the petition for special action, it sided with Hurles in holding that Judge Hilliard had no standing to appear as more than a nominal respondent in the case, or in any
We emphasize again that it is the highly unusual facts of this case that compel us to conclude Hurles was denied his right to due process. As the Supreme Court has noted, "most questions concerning a judge's qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard." Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (citations omitted). We deal here with a perfect storm of rare incidents that are unlikely to repeat themselves. Unlike in Caperton, where the Court had to contend with the possibility that its ruling would unleash a "flood of recusal motions," this case presents no such danger. Caperton, 129 S.Ct. at 2265; see id. at 2274 (Scalia, J., dissenting) (arguing that the Court's decision would lead to a drastic increase in judicial bias litigation). First, as Judge Hilliard herself pointed out, special action appearances by trial judges no longer occur in the wake of Hurles v. Superior Court. Thus, this factual scenario is a relic of past practice in Arizona courts, rare even at the time and nonexistent today. Second, in this particular case, the judge in question was the sole arbiter of the defendant's death sentence; she alone weighed the evidence and determined that Hurles deserved to die. This practice is no longer constitutionally permissible in the wake of Ring v. Arizona, 536 U.S. 584, 597-98, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Indications of probable bias are thus all the more troubling in an exceptional case such as this, and the consequences of an unfair capital sentencing are irreversible. We must therefore conclude that "[o]n these extreme facts the probability of actual bias rises to an unconstitutional level." Caperton, 129 S.Ct. at 2265.
At oral argument, when counsel was asked what relief she was seeking for her client pursuant to his judicial bias claim, she requested only a new sentencing. Therefore, we remand to the district court with instructions to grant a writ of habeas corpus as to Petitioner's sentence unless the State of Arizona elects, within 90 days of the issuance of the mandate, to resentence Petitioner before a jury and presided over by a judge other than Judge Hilliard, within a reasonable time thereafter to be determined by the district court.
Because Hurles will receive a new sentencing and, if necessary, a new appeal after his sentence has been determined by a jury, we do not reach or decide the remainder of his claims on appeal, including whether his sentencing or appellate counsel were ineffective, and whether he defaulted on any of those claims.
Today the majority overturns a convicted murderer's capital sentence, ignoring AEDPA's command to defer to a state court's decision unless it is objectively unreasonable. See Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The AEDPA analysis here is straightforward. During the preliminary phases of Hurles's capital trial, the state trial judge denied Hurles's motion for appointment of a second attorney. Hurles appealed that denial in a special action proceeding, and the state Attorney General submitted a brief in the trial judge's name defending the ruling. Over seven years later, after an unsuccessful direct appeal and post-conviction proceeding, Hurles claimed that the trial judge's participation in the special action proceeding violated his due process rights and moved for her recusal from further participation in his case. The trial judge denied Hurles's motion and rejected his claim that her participation in the special action proceeding created an unconstitutional "appearance of bias." Hurles now claims that this conclusion is contrary to Supreme Court precedent. Because there is no clearly established Supreme Court authority that even hints the trial court's decision was wrong, we must defer to its determination and deny the petition. Murdoch v. Castro, 609 F.3d 983, 991 (9th Cir.2010) (en banc).
The majority's contrary conclusion that it can avoid AEDPA deference and grant the petition under § 2254(d)(2)
Because an objective view of the facts and procedural history of Hurles's case is crucial to a correct understanding of the legal issues in dispute, I briefly recount the relevant sequence of events.
The facts of Hurles's crime form the backdrop for the dispute over whether Hurles needed a second attorney, which is at the heart of his habeas claim. The Arizona Supreme Court provided the following description:
State v. Hurles (Hurles II), 185 Ariz. 199, 914 P.2d 1291, 1293-94, 1299 (1996).
After Hurles was indicted for this murder, Maricopa County appointed private defense counsel to represent him. Hurles made an ex parte motion for the appointment of a second counsel to aid in his defense. He argued that he was entitled to a second attorney because: (1) the case would "involve numerous civilian and law enforcement witnesses"; (2) the state would have forensic experts testify regarding suspect identification and sexual assault; and (3) "[p]reparation for the possible penalty phase in such a case will [be] in itself a time consuming, complex process." To support his arguments on the third
After the state trial court denied the request, Hurles filed a petition for special action in the Arizona Court of Appeals,
The majority bases its claim that Judge Hilliard was biased primarily (if not solely) on the contents of this brief. First, the majority contends that the brief demonstrates Judge Hilliard's view that "the case was simple because [Hurles] was obviously guilty." Maj. op. at 1318. The majority's claim is belied by an objective reading of the brief. As explained above, Hurles's motion for appointment of a second counsel put at issue the question whether the case was too complex to be handled by one attorney. In ruling on the motion, the trial court had been obliged to consider the extent and complexity of the evidence likely to be presented in order to rule on the motion. The brief explained the basis for the trial court's decision. In response to Hurles's claim that a second counsel was required due to the high number of witnesses and forensic experts, the brief noted that Maricopa County planned to call "relatively few" witnesses, namely 10 law enforcement agents, the medical examiner, and several civilians.
Turning to Hurles's legal argument, the brief asserted that Hurles's reliance on California precedent was misplaced because Arizona had adopted different rules, procedures, and time frames. Specifically, according to the brief, while California law presumed the necessity of a second attorney in capital cases, Arizona had no such presumption. Further, in refuting Hurles's claim that the need to prepare simultaneously for the guilt and penalty phases mandated the appointment of a second attorney, the brief noted that while California required sentencing to begin within 20 days of the verdict, Arizona gave a capital defendant 90 days after the verdict to prepare for sentencing, as well as the option to seek an extension of that time for good cause; these procedural differences made concurrent preparation for both phases far less urgent in Arizona than in its sister state. Ariz. R.Crim. P. 26.3. Thus, the majority's contention that the brief gave "short shrift" to Hurles's arguments, or ignored the sentencing phase and the special burdens of a capital case, Maj. op. at 1318-19, is wrong.
Finally, the brief opined that defense counsel's unsupported request for co-counsel at such an early stage of a case involving a fairly standard workload and flexible system of deadlines amounted to speculation by Hurles's appointed counsel that she would render ineffective assistance if she did not have co-counsel.
The majority also faults the brief for failing to consider "the need for extensive investigation" to address the "alleged bases for legal insanity." Maj. op. at 1319. But at the time of the special action, Hurles's attorney had not yet noticed any defenses (insanity or otherwise), and Hurles did not argue that the work involved to prepare an insanity defense was a reason he needed a second lawyer.
Before addressing the merits of the special action petition, the Arizona Court of Appeals determined that the case raised "a significant threshold question of standing" that gave the court the chance to refine its jurisprudence on "whether — or under what circumstances — the trial court may properly respond" to a petition for special action. Hurles I, 849 P.2d at 1-2. The court acknowledged that in the seminal case, Fenton v. Howard, the Arizona Supreme Court had held that "a judge does have the right to appear and to be represented in a special action against him, where the judge is a named respondent," 118 Ariz. 119, 575 P.2d 318, 320 (1978), and that a later appellate decision, State ex rel. Dean v. City Court of Tucson, 123 Ariz. 189, 598 P.2d 1008, 1009 (App.1979), had interpreted Fenton as establishing "a trial judge's unequivocal right to respond to a special action, whatever the nature of the decision the judge seeks to defend." Hurles I, 849 P.2d at 3.
Turning its attention to the merits of the special action petition, the Arizona Court of Appeals agreed with Judge Hilliard's denial of Hurles's motion to appoint a second counsel. Because Hurles's counsel had failed to make "a particularized showing" on the need for a second lawyer and did not "submit evidence to the trial court regarding customary practice in defense of capital cases," the court "[found] no matter that warrants special action intervention at this time." Id.
The majority's claims that the opinion by the Arizona Court of Appeals in this case "called out" Judge Hilliard "for `inappropriate' conduct," Maj. op. at 1321-22, and constituted "an important and strong rebuke of active judicial participation in special actions," id. at 1316, are contrary to and unsupported by the language of that opinion.
Finally, it is noteworthy that at the time of the submission of the brief on behalf of Judge Hilliard, Hurles did not indicate any concern or otherwise flag this event as being out of the ordinary. Hurles said nothing about a judicial bias concern before or after the trial in which the jurors unanimously found him guilty of premeditated and felony murder. Nor did he raise such a concern at sentencing, where under then-current Arizona rules, the trial judge acted alone in imposing the death penalty. Nor did Hurles's direct appeal or first petition for post-conviction relief raise a judicial bias claim.
A year after the court denied his first petition for post-conviction relief, Hurles filed a motion stating that he intended to file a second petition for post-conviction relief that would raise his appearance-of-bias due process claim based on the special action proceeding. He therefore moved to recuse Judge Hilliard from further involvement in his case. Hurles's recusal motion was referred to a different trial court judge, Judge Ballinger, who ruled that there was no basis to transfer Hurles's case to another judge.
As described above, the state trial court determined that because a reasonable and objective person knowing all the facts would not harbor doubts about the judge's impartiality, Judge Hilliard's role in presiding over the trial and sentence did not deprive Hurles of his federal due process rights. The trial court's decision is the last reasoned decision on this claim, and therefore the one that we must consider under AEDPA review. See Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Under § 2254(d)(1) and Supreme Court precedent, we are tasked with determining whether this determination was "contrary to" clearly established Supreme Court precedent, using the analytic framework set forth below.
"Supreme Court precedent reveals only three circumstances in which an appearance of bias — as opposed to evidence of actual bias — necessitates recusal." Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007). These three situations are (1) when a judge "has a direct, personal, substantial pecuniary interest in reaching a conclusion against [one of the litigants]," id. (alteration in original) (quoting Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927)) (internal quotation marks omitted); (2) when "a judge becomes embroiled in a running, bitter controversy with one of the litigants," id. (quoting Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)) (internal quotation marks omitted); and (3) when a judge "acts as `part of the accusatory process,'" id. (quoting In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). Here there is no claim that Judge Hilliard had a pecuniary interest in the prosecution of Hurles. Nor does the majority suggest that Judge Hilliard was embroiled in a running feud with Hurles. Instead, the majority relies on three Supreme Court opinions, Murchison, Johnson, and Caperton,
Here, not only could a state court draw a principled distinction between the situation in this case and those in Murchison and Johnson, but it is quite a stretch to hold that such Supreme Court precedents apply at all. Murchison involved the appearance of bias of a Michigan state judge who, while sitting as a "one-man grand jury," concluded a witness was lying, charged him with perjury, and ordered him to show cause why he should not be convicted of criminal contempt. 349 U.S. at 134, 75 S.Ct. 623. The Court held that a judge could not act as a grand jury "and then try the very persons accused as a result of his investigations." Id. at 137, 75 S.Ct. 623. Unlike Murchison, Judge Hilliard did not assume a prosecutorial role in Hurles's case. In fact, neither Hurles nor the majority even suggests that Judge Hilliard participated in any way in the formal accusatory process that resulted in Hurles's trial, over which Judge Hilliard later presided. Nor can the special action proceeding, in which Hurles asked the Arizona Court of Appeals to grant his request for a second defense attorney, be deemed part of the "accusatory process." This proceeding, which was ancillary to any determination of guilt or penalty, involved an evaluation of the evidence only for purposes of determining whether a second counsel was necessary.
Similarly, Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971) (per curiam), involved a civil rights activist who successfully sued a state trial judge to enjoin the judge from discriminatory practices in seating juries. Id. at 214-15, 91 S.Ct. 1778. Two days after being so enjoined, the trial judge found the defendant guilty of criminal contempt in a different case. Id. at 215, 91 S.Ct. 1778. The Court concluded that due process would not permit the judge, who had just lost a civil rights case to the defendant (and therefore was subject to an ongoing federal injunction), to preside over the defendant's contempt trial. Id. at 215-16, 91 S.Ct. 1778 (holding that because the judge had been "a defendant in one of petitioner's civil rights suits and a losing party at that," he was plainly "so enmeshed in matters involving petitioner" as to require his recusal). Unlike Johnson, the record here does not show that Judge Hilliard was "enmeshed" in matters involving Hurles, nor that someone in her position would likely have a personal animus toward him. Cf. id. at 215, 91 S.Ct. 1778 (noting "the affidavits filed by the lawyers reciting intemperate remarks of Judge Perry concerning civil rights litigants"). The majority's position that the Arizona Court of Appeals's ruling on standing would give rise to a temptation on Judge Hilliard's part "not to hold the balance nice, clear, and true," Maj. op. at 1320 (quoting Tumey, 273 U.S. at 532, 47 S.Ct. 437), is meritless. With all due respect, the majority's holding equating a state court ruling that Judge Hilliard lacked standing, but had ruled correctly on the merits of
The majority also cites Caperton for the general proposition that a judge's failure to recuse may constitute a due process violation if "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." 129 S.Ct. at 2259 (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456). Although Caperton is not applicable here, because it was not clearly established Supreme Court precedent at the time of the state court decision at issue, the state court's decision is not contrary to this rule. The Court has made clear that the more general the rule laid out by Supreme Court precedent, the more latitude we must give a state court "to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). Caperton makes clear that a failure to recuse rises to a constitutional violation only in the most "exceptional case." Caperton, 129 S.Ct. at 2263; see also id. ("It is, of course, not every attack on a judge that disqualifies him from sitting.") (quoting Mayberry, 400 U.S. at 465, 91 S.Ct. 499). Because the Arizona court's determination that the special action proceeding did not rise to such an exceptional level was not "`diametrically different' [from], `opposite in character or nature' [to], or `mutually opposed' to" the rule of Caperton, it is not "contrary to" that case, and therefore does not violate § 2254(d)(1). Williams, 529 U.S. at 406, 120 S.Ct. 1495.
Accordingly, an objective comparison of Hurles's case to the Supreme Court decisions discussed above shows beyond question that the state court's conclusion was not "contrary to" clearly established precedent. Because the court is not relieved of AEDPA deference, the district court was correct in determining it had no authority to grant habeas relief.
Because the correct application of AEDPA here is straight-forward, the majority's anomalous approach to AEDPA is surprising. Instead of considering whether the state court opinion was contrary to clearly established Supreme Court precedent, the majority focuses on whether the opinion was "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Maj. op. at 1309 (quoting § 2254(d)(2)).
The crucial flaw in this approach is clear: there are no material facts in dispute in this case. The ultimate question, whether a specific fact situation involving a judge "created a constitutionally intolerable probability of actual bias," is a legal question determined by objective rules. See Caperton. 129 S.Ct. at 2262; see also id. at 2263 (stating that the Due Process Clause "is implemented by objective standards that do not require proof of actual
The majority tries to escape the force of this conclusion by asserting that the state court's decision was based on an unreasonable fact-finding process. First, the majority claims that Judge Hilliard erred in resolving the challenge to her own impartiality. But as the majority acknowledges, Maj. op. at 1313-14, it is not improper for a judge to rule on his or her own recusal; rather, it is the standard procedure. Under both federal and Arizona law, judges typically rule on motions seeking to recuse them from a pending matter, and, where necessary, they determine the relevant facts. Id.; see, e.g., 28 U.S.C. § 455(a); Ariz.Code of Jud. Conduct R. 2.11(A); see also Microsoft Corp. v. United States, 530 U.S. 1301, 1301-02, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000) (statement of Rehnquist, C.J.) (setting forth the facts regarding his son's representation of Microsoft in a different matter, and concluding that those facts did not require his recusal in a case brought by Microsoft on the same subject matter because "a well-informed individual would [not] conclude that an appearance of impropriety exists" based on those facts); Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir.2011) (statement of Reinhardt, J.) (setting forth the facts regarding
Second, the majority argues that the state court's fact-finding process was flawed because the court declined to hold an evidentiary hearing on Hurles's appearance-of-bias claim. Maj. op. at 1310-13. This contention also fails; obviously, an error in a fact-finding process is irrelevant if there are no material facts in dispute. In the cases cited by the majority, we have made clear that an evidentiary hearing is necessary only when a dispute relates to a material fact that must be resolved in order to fully adjudicate the habeas petitioner's claims. See, e.g., Perez v. Rosario, 459 F.3d 943, 950-51 (9th Cir.2006) ("Where there is no likelihood that an evidentiary hearing would have affected the determination of the state court, its failure to hold one does not make such determination unreasonable."); see also Taylor v. Maddox, 366 F.3d 992, 1000-01 (9th Cir.2004). As already noted, however, there was no such dispute here: Hurles's claim that Judge Hilliard appeared biased was based on the undisputed fact that a brief was submitted in her name in the special action proceeding.
Although Hurles belatedly (in his reply brief in the second state post-conviction proceeding) stated that he "anticipate[d] the need for factual development" in order "to explore the nature of the contacts" between the Attorney General's office and the court, he did not indicate what facts could have been developed that would have supported his due process claim, or why the nature of the contacts made a difference to his claim that Judge Hilliard appeared biased based on her participation in the special action proceeding.
Because there is no basis to conclude that the state court's decision was based on an unreasonable determination of the facts in light of the evidence, § 2254(d)(2), the majority is not relieved of AEDPA deference under that prong of the statute. In holding otherwise, the majority's decision invites future habeas petitioners to raise the baseless argument that a state court's legal rulings are actually unreasonable factual determinations. Such an approach is directly contrary to Congress's command in § 2254(d) and blurs a critical line that extends far beyond our habeas jurisprudence.
The Supreme Court has harshly criticized our non-compliance with AEDPA deference, not only this Term,
Second, the majority quotes the Assistant Arizona Attorney General as saying: "`The [Arizona Court of Appeals] held that ... it is improper for a judge to [act as Judge Hilliard did],'" Maj. op. at 1316 (emphasis added). The unabridged version of this quotation makes clear that the Court of Appeals was not specifically criticizing Judge Hilliard, but was formulating a new rule of law. The full quotation reads: "The court held that a judge named as a respondent in a special action can file a responsive pleading only to explain or defend an administrative practice, policy, or local rule, and that it is improper for a judge to respond `merely to advocate the correctness of an individual ruling in a single case.'" Opp. to Mot. to Recuse at 2, Hurles v. Schriro, No. CIV-00-0118-PHX-RCB (D.Ariz.2008), ECF 72-6 at *25. The majority's paraphrase is misleading.
