Hurles v. Ryan, 914 F.3d 1236 (2019)

Feb. 1, 2019 · United States Court of Appeals for the Ninth · No. 16-99007

914 F.3d 1236

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

No. 16-99007

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2018 San Francisco, California
Filed February 1, 2019

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.

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, 131 S.Ct. 770, 178 L.Ed.2d 624 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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 cannot say that the district court committed clear error in its factual determinations.¹

2. As to the question of ineffective assistance of appellate counsel, the prior panel excused the procedural default because it held that post-conviction relief counsel was ineffective in failing to raise the ineffective assistance of appellate counsel claim. Hurles , 752 F.3d at 781-83. In so holding, the panel applied Nguyen v. Curry , 736 F.3d 1287 (9th Cir. 2013). Ngyuen is an extension of Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), where the Supreme Court held that a successful claim of post conviction ineffective assistance of counsel can excuse a procedurally defaulted claim of ineffective assistance of trial counsel. In Nguyen , we held that the same reasoning applied to defaulted claims of ineffective assistance of appellate counsel. Nguyen , 736 F.3d at 1289.

Subsequently, however, the Supreme Court decided Davila v. Davis , --- U.S. ----, 137 S.Ct. 2058, 198 L.Ed.2d 603 (2017), in which it held that Martinez does not extend to procedurally defaulted claims of ineffective assistance of appellate counsel. Id. at 2065-66. Where intervening Supreme Court authority is "clearly irreconcilable" with prior circuit authority, the intervening authority binds the panel. Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003). Intervening authority is clearly irreconcilable if it "undercut[s] the theory or reasoning underlying the prior circuit precedent." Rodriguez v. AT & T Mobility Servs. LLC , 728 F.3d 975, 979 (9th Cir. 2013) (quoting Miller , 335 F.3d at 900 ). Because Davila is clearly irreconcilable with our prior circuit precedent, Ngyuen does not control our decision. Further, because Davila is intervening authority, the prudential law of the case doctrine does not bind this panel.² Under Davila , the petitioner's claim is not viable.³

Given our resolution of the case, we need not, and do not, reach any other issues presented by the parties.

AFFIRMED.

1 Pursuant to the jurisprudential doctrine of law of the case, we decline to reconsider matters pertaining to this issue which were decided in the prior appeal. Jeffries v. Wood , 114 F.3d 1484, 1488-89 (9th Cir. 1997) (en banc). The only question presented in this appeal is whether the district court's factual findings on remand were clearly erroneous.

2 See Jeffries , 114 F.3d at 1488-89 (noting that intervening controlling authority is one of the three exceptions to the law of the case doctrine).

3 We are bound by our precedent emphasizing that "only the Supreme Court could expand the application of Martinez to other areas," and "further substantive expansion" of Martinez is "not ... forthcoming." Pizzuto v. Ramirez , 783 F.3d 1171, 1176-77 (9th Cir. 2015) (refusing to apply Martinez to procedurally defaulted claims of judicial bias); see also Hunton v. Sinclair , 732 F.3d 1124, 1126-27 (9th Cir. 2013) (rejecting the argument that Martinez permitted resuscitation of a procedurally defaulted Brady claim). Even if Davila were construed to allow an exception to the general rule under Coleman v. Thompson , 501 U.S. 722, 752-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), such an exception would not apply here. Trial counsel requested funding for a Computer Assisted Topographic Mapping scan, which was then denied by the state court on procedural grounds. Hurles suggests that orders denied on procedural grounds should be considered as unpreserved trial errors within the meaning of the potential exception identified in Davila , but Davila does not draw that distinction and there is no other support for that proposition in Supreme Court jurisprudence. Hurles's interpretation would considerably broaden the "limited circumstances" meriting Martinez 's "highly circumscribed, equitable exception." Id. at 2066 (citing Martinez , 132 S.Ct. at 1320 ).