Hurles v. Ryan

Citation11 Cal. Daily Op. Serv. 8403,650 F.3d 1301,2011 Daily Journal D.A.R. 10136
Decision Date07 July 2011
Docket NumberNo. 08–99032.,08–99032.
PartiesRichard D. HURLES, Petitioner–Appellant,v.Charles L. RYAN,* Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)


Denise I. Young and Michael Aaron Harwin, Tucson, AZ, for the 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 the 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.Before: HARRY PREGERSON, D.W. NELSON and SANDRA S. IKUTA, Circuit Judges.Opinion by Judge D.W. Nelson; Dissent by Judge IKUTA.


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 front door locked and saw Blanton lying in a pool of blood.

Dr. Walter, a defense expert, described Hurles's account of that time:

On the day before the present offense, Richard drank approximately eighteen beers throughout the day and had only one meal in the evening. The next morning he was still intoxicated. Richard ate a large breakfast shortly before his nephew invited him to go meet a woman and drink more beer. Allegedly, they both had consensual sex with the woman before leaving. While en [ ] route to his brother's house, an old acquaintance, a drug dealer, gave Richard a hit of L.S.D. and congratulated him on getting out of prison. Once back at home, Richard drank several more beers before going to the library to return some books. He is unsure how long he was there and has no memory of the actual offense.

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.1 Hurles's attorney cited the need to prepare for not only the guilt phase of Hurles's capital proceedings, in which she would later raise an insanity defense and need to prepare expert testimony and scientific evidence, but also the complex sentencing phase. After Judge Hilliard denied the request without explanation, Hurles's attorney petitioned the court of appeals in a special action, arguing that the judge had abused her discretion.

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 communications with Judge Hilliard about Hurles's case in the context of representing Judge Hilliard in the special action proceeding, although the record is ambiguous as to the nature and extent of those communications.

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.2 Richard was always slow and was routinely placed in special classes in school. Various doctors at points in his life have diagnosed him as mentally retarded, borderline mentally retarded, and learning disabled.

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 offered no protection from John's abuse, as she was often the victim herself. Edith Hurles remembered that John would beat Irene “whenever he got drunk, and he was drunk all the time.”

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...

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