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
The opinion of the court was delivered by: D.W. Nelson, Senior Circuit Judge
Argued and Submitted October 7, 2010-Pasadena, California
Before: Harry Pregerson, Dorothy W. Nelson and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge D.W. Nelson; Dissent by Judge Ikuta
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 pre- side 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
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 pm. 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, 914 P.2d 1291, 1293-94 (Ariz. 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.*fn2 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, 598 P.2d 1008, 1011 (Ariz. Ct. App. 1979); see also Hurles v. Superior Court, 849 P.2d 1, 2 (Ariz. Ct. 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, 849 P.2d 1 (Ariz. Ct. 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.*fn3 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 "when-ever 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 the children vodka as a toddler; alcohol and drug abuse were never discouraged. As Richard explained, "[I]t was routine for three or four of us to be high on alcohol, marijuana, or cocaine." Dr. Stonefeld testified during the pre-sentence hearing that "[t]he norm in [Hurles's] family was abuse of alcohol." Richard's education ended permanently in the seventh grade after he was caught sniffing paint on school property. He sniffed paint once or twice per week beginning at age twelve. At age fourteen, Richard added approximately five marijuana joints per week to his drug intake, and he began experimenting with other drugs, including mushrooms and heroin. At fifteen, he began snorting three to four lines of cocaine and smoking twenty-five marijuana joints per week and increased his alcohol intake to a six-pack of beer per week. By the ages of sixteen to seventeen, "[h]e [drank] approximately a case of beer, two to three fifths of wine, two pints of whiskey, smoked eighty marijuana joints, and snorted two grams or twelve lines of cocaine each week." He maintained this level of drug abuse until he was first incarcerated. At that time he reported to Dr. Tuchler that he was "drinking all day if he ha[d] the money."
Richard has reported hearing voices giving him violent commands intermittently since age seventeen. During his first stint in prison in 1978, he was prescribed an anti-psychotic drug, Mellaril, to suppress the voices. He later took the same drug again in prison after the murder in 1993. Hurles has stated that he heard voices telling him to "push other inmates down the stairs." He avoided stairs so that he would not do what the voices told him to do.
Most doctors who have examined Hurles have found him mentally and emotionally wanting. Dr. Bendheim, who examined him in 1978 relating to child molestation criminal proceedings, described him as "mentally retarded and illiterate." Dr. Tuchler concluded at the same time that Hurles was incompetent to stand trial due to his "sociocultural and intellectual defect[s]" and "borderline mental retardation." He was housed in the prison's section for the mentally retarded for over half of the thirteen years he was in jail for previous crimes. Dr. Walter, who examined him in 1993, described him as "showing significant levels of neuropsychological deficit" and an "overall degree of dysfunction . . . which represents performance in the 'brain damaged range.' " Dr. Walter also thought he likely suffered from both depression and a thought disorder. Dr. Walter's battery of neuropsychological testing placed Hurles "in the brain damage range in six out of seven measures felt to be most sensitive to brain functioning." Post-conviction testing revealed an abnormality in the left frontal lobe of his brain.
Dr. Walter concluded that alcohol and drug abuse have a more pronounced effect on someone with Hurles's developmental limitations, exacerbating his mental deficits and leading to "more blatant cerebral dysfunction." Similarly, Dr. Bendheim explained, "This type of intoxication in a mentally retarded person further reduces his judgment, his capacity to adhere to the norms of society and of the law and to fully appraise the nature and consequences of his action[s] . . . ." He even opined, relating to Hurles's conviction for child molestation, "According to the history as I was taking it, it is most unlikely that the alleged offense would have been committed if he had not been severely intoxicated or, given his type of intoxication, if he had possessed norma[l] intellectual capacity which he has lacked apparently since birth."
In addition to affecting his judgment, drug abuse has also had an impact on his memory. Dr. Stonefeld explained in his September 9, 1994 evaluation that Hurles "has significant memory problems with large gaps in events and time sequences. These episodes are largely related to periods of intoxication." Indeed, Hurles would sometimes lose time when high on inhalants, including, as he reported to Dr. Bend-heim in 1978, "[o]ne time after sniffing paint [when] he found himself in Buckeye for two days without remembering how he got there."
In contrast to his behavior outside prison, Hurles received glowing reviews from prison staff who worked closely with him during his long term with the Arizona Department of Corrections. Staff described him as "very, very compliant," "a very good worker" who "remember[ed] daily tasks" and whose "attendance was always good," and someone who "was never out of control" and never "displayed any . . . problems controlling his temper." Richard received numerous evaluations from prison staff describing him as "excellent." One staff member commented specifically, "Richard has demonstrated his ability to function well while in prison." Mari-lynn Windust, a Correctional Program Officer specializing in mental health and primary substance abuse at the Arizona Department of Corrections while Hurles was imprisoned there, worked with Hurles daily for two years. She stated that, to her knowledge, he had never received disciplinary infractions or had any difficulty complying with prison programs. Dr. Stonefeld considered it consistent with his diagnoses of Hurles that he did and could thrive in the "structured, very orderly" environment of the prison system.
Following the aggravation/mitigation hearing, Judge Hilliard-as the sole sentencer-sentenced Hurles to death on October 13, 1994. The Arizona Supreme Court affirmed on direct appeal. State v. Hurles, 914 P.2d 1291 (Ariz. 1996).
Hurles filed his first petition for post-conviction review ("PCR") on January 8, 1999, alleging four claims, including both ineffective assistance of counsel claims raised in this appeal. Judge Hilliard again presided over this PCR, and Colleen French from the Attorney General's office-Judge Hilliard's attorney in the prior special action proceeding- represented the State. Judge Hilliard denied the PCR, and the Arizona Supreme Court affirmed without comment.
Hurles began federal habeas proceedings in 2000, but then returned to state court to file a second PCR raising additional claims, including judicial bias and new ineffective assistance of counsel claims. He requested Judge Hilliard's removal from the case and was denied. Judge Hilliard then denied his second PCR. The Arizona Supreme Court affirmed without comment.
Hurles filed an amended petition for habeas corpus in the District of Arizona, raising ten claims. The district court denied most of them as procedurally barred. After additional briefing, the district court dismissed the remainder of Hurles's claims. The district court then certified four issues for appeal to this Court.
This Court reviews the district court's decision to deny a 28 U.S.C. § 2254 habeas corpus petition de novo, Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000), and its findings of fact for clear error, McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir. 2003).
When reviewing decisions of the Arizona state courts, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to any petition filed after April 24, 1996.
28 U.S.C. § 2254; see also Woodford v. Garceau, 538 U.S. 202, 204 (2003); Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a federal court may grant relief if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In addition, a federal court may grant relief with respect to the factual findings of the state court if those findings were "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)(2). If the "state court's fact-finding process survives this intrinsic review," its "findings are dressed in a presumption of correctness" under Section 2254(e)(1). Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
Petitioner argues that the trial judge should have recused herself from his criminal proceedings after she became an active party in his interlocutory appeal. Her continued involvement with his case, he contends, denied him due process of law. Given the judge's conduct in the special action proceeding, which the Arizona Court of Appeals specifically deemed improper, the potential for bias was unconstitution-ally high. Therefore, we reverse the district court's denial of Hurles's claim.
A. Clearly Established Supreme Court Precedent
 "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). Indeed, the "legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisan-ship." Mistretta v. United States, 488 U.S. 361, 407 (1989). This most basic tenet of our judicial system helps to ensure both litigants' and the public's confidence that each case has been fairly adjudicated by a neutral and detached arbiter. An appearance of ...