and Submitted December 10, 2018 San Francisco, California
from the United States District Court for the District of
Arizona Douglas L. Rayes, District Judge, Presiding D.C. No.
Katherine Skinner (argued) and Natman Schaye, Associate
Counsel, Arizona Capital Representation Project, Tucson,
Arizona; Denise Young, Tucson, Arizona; for
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.
panel affirmed the district court's judgment, on remand
for an evidentiary hearing, dismissing a habeas corpus
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.
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.
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.
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).
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,