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Hurles v. Ryan

United States Court of Appeals, Ninth Circuit

February 1, 2019

Richard Dean Hurles, Petitioner-Appellant,
v.
Charles L. Ryan, Warden; George Herman, Warden, Arizona State Prison - Eyman Complex, Respondents-Appellees.

          Argued and Submitted December 10, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding D.C. No. 2:00-cv-00118-DLR

          Emily Katherine Skinner (argued) and Natman Schaye, Associate Counsel, Arizona Capital Representation Project, Tucson, Arizona; Denise Young, Tucson, Arizona; for Petitioner-Appellant.

          Julie Ann Done (argued), Assistant Attorney General, Capital Litigation Section; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellees.

          Before: Sidney R. Thomas, Chief Judge, and Richard A. Paez and N. Randy Smith, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus

         The panel affirmed the district court's judgment, on remand for an evidentiary hearing, dismissing a habeas corpus petition.

         The panel could not say that the district court committed clear error in its determinations, after conducting an evidentiary hearing on remand, that there was no actual judicial bias.

         The panel held that the petitioner's claim of ineffective assistance of appellate counsel is not viable in light of Davila v. Davis, 137 S.Ct. 2058 (2017), which held that the holding in Martinez v. Ryan, 566 U.S. 1 (2012) - that a successful claim of post-conviction ineffective assistance of counsel can excuse a procedurally defaulted claim of ineffective assistance of trial counsel - does not extend to procedurally defaulted claims of ineffective assistance of appellate counsel. The panel wrote that because Davila is clearly irreconcilable with this court's prior precedent, Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), Nguyen does not control the panel's decision, and a prior panel's pre-Davila decision applying Nguyen to this case does not bind this panel.

          OPINION

          PER CURIAM

         This appeal returns to us after a prior panel remanded the case to the district court for an evidentiary hearing. Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014). After considering the record, briefs, and arguments, we affirm. The factual record in the case was thoroughly discussed in our prior opinion, so we need not recount it here.

         Because Hurles filed his federal habeas petition in 2000, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs. Hurles, 752 F.3d at 777. AEDPA "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Relief should not be granted unless the state court proceedings either "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "(2) resulted in a decision that was 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). Clearly established law is limited to the Supreme Court's holdings at the time of the state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). We review de novo the district court's dismissal of the petition and its findings of fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).

         1. The prior panel remanded the issue of judicial bias for an evidentiary hearing on risk of actual bias. The district court conducted a thorough hearing on that issue and made factual findings that no bias occurred. After reviewing the record, the briefs, and considering the arguments of counsel, we ...


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