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Hurles v. Ryan

United States District Court, D. Arizona

May 19, 2016

Richard Dean Hurles, Petitioner,
v.
Charles L. Ryan, et al., Respondent.

          ORDER

          DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE

         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.

         JUDICIAL BIAS

         I. Background

         The following facts are taken from the opinion and order remanding the case, Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014), the Arizona Supreme Court’s opinion affirming Hurles’ conviction and sentence, State v. Hurles, 914 P.2d 1291 (Ariz. 1996) (en banc), and this Court’s review of the record.

         A. Trial

         Hurles, on parole after serving nearly fifteen years in prison for sexually assaulting two young boys, went to the library in Buckeye, Arizona, on the afternoon of November 12, 1992. After the last patron left, Hurles locked the front doors and attacked librarian Kay Blanton in the back room. He attempted to rape her, stabbed her thirty-seven times, and kicked her so violently that he tore her liver. She later died of her injuries.

         Hurles left the library and proceeded to the home of his nephew, Thomas. He told Thomas that he had been in a fight with a Spanish man at the library. After changing his clothes and cleaning up, Hurles asked Thomas for a ride to Phoenix. On the way to Phoenix, Hurles had Thomas pull over so he could discard his bloody clothes. Thomas 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 home and that he had behaved well in prison prior to the underlying crime. The court concluded that these circumstances did not warrant leniency and sentenced Hurles to death. The Arizona Supreme Court affirmed. Hurles, 914 P.2d 1291.

         B. Special Action

         Prior to trial, Hurles moved for appointment of a second attorney to assist in his defense. (SA at 30-34.)[1] The trial judge, Maricopa County Superior Court Judge Ruth Hilliard, summarily denied the motion. (Id. at 36.) Hurles sought interlocutory relief in the Arizona Court of Appeals, filing a petition for special action challenging the trial court’s ruling and asserting that defendants in capital cases are entitled to two lawyers. (Id. at 38.) The named parties were Richard Hurles, Petitioner; Maricopa County Superior Court and Judge Hilliard, Respondents; and Maricopa County Attorney Richard Romley as the “Real Party in Interest.” (SA at 64.)

         The Maricopa County Attorney’s Office, which was prosecuting the case, declined to respond to the special action because under state law it lacked standing in the selection of defense counsel. See Hurles v. Super. Ct. in and for the Cty. of Maricopa, 849 P.2d 1, 2 (Ariz.Ct.App. 1993). At the request of the Presiding Criminal Judge of the Maricopa 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 that the lack of second counsel would violate his Sixth Amendment and equal protection rights. (Id. at 67-73.) Finally, the response suggested that appointed counsel was ethically bound to withdraw from the case, and possibly the Maricopa County list of contract defense lawyers, if she believed herself incapable of competently representing Hurles. (Id. at 73.)

         The Arizona Court of Appeals ordered supplemental briefing on the issue of Judge Hilliard’s standing. French authored the response, arguing that judges had an interest in retaining discretion with respect to the appointment of counsel in capital cases. (Id. at 78.) Specifically, French argued that it was appropriate for Judge Hilliard and the superior court bench to defend their interest in the bench’s authority to make case-by-case determinations in the appointment of capital counsel because the Real Party in Interest did not have standing to litigate the case. (Id.)

         In a published decision, the Arizona Court of Appeals declined to accept jurisdiction on the merits, concluding it was premature in light of Hurles’ failure to make a particularized showing on the need for second counsel in his case. Hurles v. Super. Ct., 849 P.2d at 2. However, the court addressed Judge Hilliard’s standing, holding that a 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-ruled-correctly” 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:

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.

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 24-45, 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 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.)

         Judge Hilliard further held that, even if it was error not to recuse herself, such error was harmless in light of the overwhelming evidence of Hurles’ guilt and the absence of any risk that injustice would occur in other cases or that public confidence in the judicial process would be undermined. (Id. at 19.) The Arizona Supreme Court summarily denied review.

         D. Habeas Review

         On habeas review, this Court denied the judicial bias claim on the merits. The 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 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.

(Doc. 99 at 17.)

         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 this Court abused its discretion by denying the claim without holding an evidentiary hearing. Hurles, 752 F.3d at 792. The Ninth Circuit explained that “this case presents an especially troubling example of defective fact-finding because the facts Judge Hilliard ‘found’ involved her own conduct, and she based those ‘findings’ on her untested memory and understanding of the events.” Id. at 791.

         The Ninth Circuit directed this Court to hold an evidentiary hearing to determine “whether the probability that Judge Hilliard harbored actual [bias] against Hurles is too high to be constitutionally tolerable.” Id. at 792 (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)). To answer that question, after noting the “tenor of Judge Hilliard’s responsive pleading in the special action, ” the Ninth Circuit listed the following factors for this Court to consider: (1) whether Judge Hilliard participated in the special action proceedings as more than a nominal party; (2) had contact with French; (3) commissioned or authorized the responsive pleading; or (4) provided any input on the brief. Id.

         E. Evidentiary Hearing Testimony

         The Court held an evidentiary hearing on January 29, 2016. Hurles called four witnesses: Colleen French; Judge Hilliard; Mark Harrison, a judicial ethics expert; and Noel Fidel, a former Maricopa County Superior Court and Arizona Court of Appeals judge.

         Colleen French testified that she was assigned to file the response to Hurles’ special action by her supervisor, Paul McMurdie, who was asked to respond to the special action by Presiding Judge Reinstein, not by Judge Hilliard. (RT 1/29/16 at 32.) It was at Judge Reinstein’s “insistence” that she filed the response. (Id. at 35.) He felt “very strongly” about the issue involved. (Id.)

         French testified that, right after she was assigned the case, she called Judge Hilliard to inform the judge that she was filing a response to the special action. (Id. at 34.) Judge Hilliard was “not cooperative, ” but she did not tell French not to file the response. (Id. at 23.) Judge Hilliard provided no assistance in preparing the brief. (Id. at 34.) French possibly sent a draft of the response to Judge Hilliard. (Id. at 35.) She sent a copy of the filing to Judge Hilliard, as required by the rules. (Id. at 24.) She received nothing from Judge Hilliard. (Id. at 36.) French spoke with Judge Hilliard only once. (Id. at 34.) She felt her client was the Superior Court as well as Judge Hilliard. (Id. at 25, 36.) Judge Hilliard did not authorize the response and provided no input. (Id. at 41.) The language in the response was French’s, and the characterization of the State’s evidence came from the prosecuting attorney. (Id. at 37-40.) French testified that Judge Hilliard was “not pleased” that the response was filed. (Id. at 42.)

         Judge Hilliard testified that she had no recollection of the special action, nor did she recall ever speaking with French. (Id. at 60.) She testified that she did not request a 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 or the presiding criminal judge. (Id. at 70.) She is sure that on such a motion she would have consulted with multiple other judges. (Id.) She recalled that at the time of Hurles’ trial there were financial issues that might have affected the appointment of second-chair counsel. (Id. at 71.)

         Finally, Judge Hilliard testified that she did not recall whether she had notes on the case. (Id. at 68.) However, she disposed of whatever notes she ...


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