Hurles v. Ryan

• Citation: 706 F.3d 1021
• Decision Date: 18 January 2013
• Docket Number: No. 08–99032.,08–99032.
• Parties: Richard D. HURLES, Petitioner–Appellant, v. Charles L. RYAN, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

706 F.3d 1021

Richard D. HURLES, Petitioner–Appellant,
v.
Charles L. RYAN,^* Respondent–Appellee.

No. 08–99032.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Oct. 7, 2010.
Filed Jan. 18, 2013.

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Denise I. Young and Michael Aaron Harwin, Tucson, AZ, for Petitioner–Appellant.

Terry Goddard, Attorney General of Arizona, Phoenix, AZ, for Respondent–Appellee.

Kent E. Cattani and J.D. Nielsen, Arizona Attorney General, Capital Litigation Section, Phoenix, AZ, for Respondent–Appellee.

Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, Senior District Judge, Presiding. D.C. No. CIV–00–0118–PHX–RCB.

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Before: HARRY PREGERSON, D.W. NELSON, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge D.W. NELSON; Dissent by Judge IKUTA.

ORDER

The opinion filed July 7, 2011, and appearing at 650 F.3d 1301 (9th Cir.2011), is withdrawn, Carver v. Lehman, 558 F.3d 869, 878–79 (9th Cir.2009), and is replaced by the opinion filed concurrently with this order. Our prior opinion may not be cited as precedent to any court. Moreover, with the original opinion withdrawn, we deem the petition for rehearing and rehearing en banc moot. The parties may file a petition for rehearing and rehearing en banc with respect to the opinion filed together with this order.

IT IS SO ORDERED.

OPINION D.W. NELSON, Senior Circuit Judge:

Petitioner Richard D. Hurles appeals the district court's denial of his federal habeas petition challenging his conviction for capital murder and the imposition of his death sentence. Hurles argues that the district court erred in denying his claims of judicial bias and ineffective assistance of sentencing and appellate counsel, and in finding various claims procedurally defaulted. We remand for an evidentiary hearing on Hurles's claim of judicial bias but otherwise affirm the district court.

I. Background

Hurles, on parole after serving nearly fifteen years for prior crimes, went to the library in Buckeye, Arizona on a November afternoon in 1992. State v. Hurles, 185 Ariz. 199, 914 P.2d 1291, 1293 (1996) (en banc). He attacked librarian Kay Blanton by attempting to rape her and then stabbing her thirty-seven times. Id. Hurles left the library, cleaned himself up, discarded his bloody clothes and fled on a bus to Las Vegas, Nevada. Id. at 1294. The state charged Hurles with burglary, first-degree murder, first-degree felony murder and attempted sexual assault. Id. at 1293.

The court appointed an attorney to represent Hurles, an indigent. That attorney moved for the appointment of co-counsel when the State decided to seek the death penalty. Defense counsel cited numerous reasons necessitating co-counsel, among them, the many witnesses, the State's intention to utilize forensic experts, the need to maintain a productive client relationship and the dense and detailed preparation necessary for both phases of trial. The trial court summarily denied the motion.

Defense counsel brought a petition for special action in the Arizona Court of Appeals. The petition challenged the denial of the motion to appoint co-counsel as violating Hurles's rights to due process, equal protection and the adequate assistance of counsel. The real party in interest, the State of Arizona, declined to respond to the petition because it lacked standing to do so. Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1, 2 (Ariz.Ct.App.1993). However, the petition named the trial judge, Ruth Hilliard, as the respondent, as required by Arizona law. Ariz. R.P. Special Actions 2(a). This nominal designation “is a mere formality,” and the trial judge “has no interest in the litigation and should have no interest in the way the case is decided.” State ex rel. Dean v. City Court, 123 Ariz. 189, 598 P.2d 1008, 1010–11 (Ariz.Ct.App.1979). Nonetheless, Judge Hilliard filed a responsive pleading, months before the presentation of any evidence in the case against Hurles, that defended her ruling below.

In her response, Judge Hilliard described the murder as “brutal.” She noted that defense counsel had not noticed any

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defenses, had not disclosed the names of trial witnesses, had not requested an examination of Hurles and that it was not known whether Hurles would present a mental health expert at trial. Judge Hilliard nevertheless described the state's case against Hurles as “very simple and straightforward, compared to other capital cases” and predicted that it would not involve an inordinate amount of witness testimony. She argued that the denial of second counsel was rationally related to the state's duty to preserve its resources, noting that Hurles had failed to show that his case was “any more complex or difficult to prepare than almost any other criminal case.” Judge Hilliard referenced the rules of professional conduct and stated that if defense counsel believed that she could not render competent representation, she was bound to withdraw and, quite possibly, to withdraw her name from the list of attorneys who contracted with the county to serve as appointed counsel. Judge Hilliard concluded, “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.”

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 advocate the correctness of an individual ruling in a single case. Hurles, 849 P.2d at 3–5. The court noted that the presiding criminal judge, not Judge Hilliard, requested the filing of a responsive pleading and that there was no contact between Judge Hilliard and the Arizona Attorney General's office as the pleading was prepared. Id. at 2, n. 2. However, Colleen French, of the Arizona Attorney General's Office, represented Judge Hilliard in the special action proceeding and later admitted to having had some communication with Judge Hilliard about this matter. In opposing a motion to disqualify the Arizona Attorney General's Office from representing the state, French referenced her “communications with [Judge Hilliard] during the special action proceedings” but did not describe their nature of content. The record is ambiguous as to the nature and extent of those communications.

Addressing Judge Hilliard's participation in the special action proceeding, the court of appeals held that it was “of the inappropriate ‘I-ruled-correctly’ sort” Hurles, 849 P.2d at 4. The court explained that “at every level of the judiciary, judges are presumed to recognize that they must do the best they can, ruling by ruling, with no personal stake—and surely no justiciable stake—in whether they are ultimately affirmed or reversed.” Id. The court stated that “[t]his principle, which is essential to impartial adjudication, does not change from direct appeal to special action, merely because the judge is a nominal respondent in the latter.” Id. The court then held that Judge Hilliard lacked standing to file a responsive pleading and declined to consider the pleading filed in her name. Id.

Judge Hilliard continued to preside over Hurles's trial. A jury found Hurles guilty of all charges. Judge Hilliard then conducted an aggravation and mitigation hearing to determine the appropriate sentence for Hurles. Arizona's capital sentencing scheme provided at the time of trial that Judge Hilliard, sitting alone, would determine the presence or absence of the aggravating factors required by state law for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Supreme Court has since held that capital defendants are entitled to a jury determination of any fact that would support the imposition of a death sentence. Id. at 589, 122 S.Ct. 2428. At the aggravation and mitigation hearing, Hurles offered substantial

[706 F.3d 1029]

mitigating evidence, including his markedly dysfunctional family background, cognitive deficiencies, long-term substance abuse, mental illness, good behavior while incarcerated and an expert opinion that Hurles suffered diminished capacity at the time of the crime.

Following the presentation of penalty phase evidence, Judge Hilliard found one statutory aggravating factor: that Hurles committed the crime in an especially cruel, heinous and depraved manner. She found two nonstatutory mitigating circumstances: that Hurles suffered a deprived childhood in a clearly dysfunctional home and that he behaved well in prison prior to the underlying crime. She concluded that these circumstances did not warrant leniency and condemned Hurles to die. The Arizona Supreme Court affirmed Hurles's conviction and sentence on appeal. Hurles, 914 P.2d at 1300.

Hurles filed his first petition for post-conviction review (“PCR”) in 1999. Judge Hilliard presided over this PCR. French, the same attorney who represented Judge Hilliard in the prior special action proceeding, represented the state. Judge Hilliard denied the PCR, and the Arizona Supreme Court summarily affirmed.

Hurles commenced federal habeas proceedings in 2000. He then returned to state court to file a second PCR raising additional claims, including one of judicial bias. Hurles moved to recuse Judge Hilliard from presiding over his second PCR. The motion was referred to another judge and denied. Judge Hilliard then denied Hurles's second PCR, and the Arizona Supreme Court summarily affirmed.

Hurles returned to federal court and filed an amended habeas petition, raising ten claims. The district court denied most of them as procedurally barred. After additional briefing, the district court denied the remainder of Hurles's claims on the merits and certified four issues for appeal to this Court.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court's denial of...