Hurles v. Ryan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD D. HURLES,  No. 08-99032
Petitioner-Appellant, D.C. No.
v.  CIV-00-0118-PHX-
CHARLES L. RYAN,* RCB
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding

Argued and Submitted
October 7, 2010—Pasadena, California

Filed July 7, 2011

Before: Harry Pregerson, Dorothy W. Nelson and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge D.W. Nelson;
Dissent by Judge Ikuta

*Charles L. Ryan is substituted for his predecessor, Dora B. Schriro, as
Director for the Arizona Department of Corrections. Fed. R. App. P.
43(c)(2).

9043
 HURLES v. RYAN 9047

COUNSEL

Denise I. Young and Michael Aaron Harwin, Tucson, Ari-
zona, for the petitioner-appellant.

Terry Goddard, Attorney General of Arizona, Phoenix, Ari-
zona, for the respondent-appellee.

Kent E. Cattani and J.D. Nielsen, Arizona Attorney General,
Capital Litigation Section, Phoenix, Arizona, for the
respondent-appellee.

OPINION

D.W. NELSON, Senior Circuit Judge:

Richard D. Hurles appeals the district court’s denial of his
petition for a writ of habeas corpus from his murder convic-
tion 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 pro-
cedural default (related to portions of his ineffective assis-
tance 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-
9048 HURLES v. RYAN
side over a murder trial and single-handedly determine Hur-
les’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 Peti-
tioner before a jury and presided over by a judge other than
Judge Hilliard, within a reasonable time thereafter to be deter-
mined by the district court. We do not reach Hurles’s remain-
ing 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 chil-
dren’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
 HURLES v. RYAN 9049
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 parame-
dics 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 prose-
cution 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 Mari-
copa County Public Defender’s Office.1 Hurles’s attorney
1
The public defender’s office was unable to represent Hurles due to a
conflict of interest. Hurles’s attorney was appointed by the court as a solo
practitioner.
9050 HURLES v. RYAN
cited the need to prepare for not only the guilt phase of Hur-
les’s capital proceedings, in which she would later raise an
insanity defense and need to prepare expert testimony and sci-
entific evidence, but also the complex sentencing phase. After
Judge Hilliard denied the request without explanation, Hur-
les’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 spe-
cial 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 spe-
cial 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 sim-
ple and straightforward.” In addition, Judge Hilliard ques-
tioned 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 deny-
ing 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. RYAN 9051
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 determin-
ing 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.2 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
2
We use the petitioner’s first name in this section so as to distinguish
him from other members of the Hurles family.
9052 HURLES v. RYAN
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 pro-
tection 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 per-
manently 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, includ-
ing 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 incar-
cerated. At that time he reported to Dr. Tuchler that he was
“drinking all day if he ha[d] the money.”
 HURLES v. RYAN 9053
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 exam-
ined him in 1978 relating to child molestation criminal pro-
ceedings, 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 intel-
lectual 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 def-
icit” and an “overall degree of dysfunction . . . which repre-
sents 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 develop-
mental limitations, exacerbating his mental deficits and lead-
ing 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
9054 HURLES v. RYAN
molestation, “According to the history as I was taking it, it is
most unlikely that the alleged offense would have been com-
mitted 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 . . . prob-
lems controlling his temper.” Richard received numerous
evaluations from prison staff describing him as “excellent.”
One staff member commented specifically, “Richard has dem-
onstrated 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 infrac-
tions 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.
 HURLES v. RYAN 9055
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 Col-
leen French from the Attorney General’s office—Judge Hil-
liard’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.

II. STANDARD OF REVIEW

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
9056 HURLES v. RYAN
(“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 find-
ings were “based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro-
ceeding.” 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).

III. JUDICIAL BIAS

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 pro-
cess 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

[1] “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
 HURLES v. RYAN 9057
been fairly adjudicated by a neutral and detached arbiter. An
appearance of impropriety, regardless of whether such impro-
priety is actually present or proven, erodes that confidence
and weakens our system of justice.

[2] While most claims of judicial bias are resolved “by
common law, statute, or the professional standards of the
bench and bar,” the Due Process Clause of the Fourteenth
Amendment “establishes a constitutional floor.” Bracy v.
Gramley, 520 U.S. 899, 904 (1997) (citations omitted). To
safeguard the right to a fair trial, the Constitution requires
judicial recusal in cases where “the probability of actual bias
on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 47
(1975). “The Court asks not whether the judge is actually,
subjectively biased, but whether the average judge in his posi-
tion is likely to be neutral, or whether there is an unconstitu-
tional potential for bias.” Caperton v. A.T. Massey Coal Co.,
129 S. Ct. 2252, 2262 (2009) (internal quotation marks omit-
ted).3 The Supreme Court has declared:

Every procedure which would offer a possible temp-
tation to the average man as a judge to forget the
burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice,
clear and true between the state and the accused,
denies the latter due process of law.

Tumey v. Ohio, 273 U.S. 510, 532 (1927).
3
We cite to Caperton, the Supreme Court’s recent decision regarding
judicial bias, throughout this opinion. Although, as the dissent points out,
Caperton is not controlling insofar as it announces new “clearly estab-
lished Supreme Court precedent” that post-dates the state court decision
at issue here, dissent at 9092 n.13, we refer to it where we find its analysis
of established Supreme Court jurisprudence helpful to our resolution of
the case. We read Caperton to announce no new rule of law that would
affect our analysis here.
9058 HURLES v. RYAN
[3] A claimant need not prove actual bias to make out a
due process violation. Johnson v. Mississippi, 403 U.S. 212,
215 (1971); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
(1986). Indeed, the Supreme Court has pointed out that it
would be nearly impossible for a litigant to prove actual bias
on the part of a judge. Caperton, 129 S. Ct. at 2262-63; see
also Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (“[W]hen
the trial judge is discovered to have had some basis for ren-
dering a biased judgment, his actual motivations are hidden
from view, and we must presume the process was impaired.”
(citing Tumey, 273 U.S. at 535). It is for this reason that the
Court’s precedents on judicial bias focus on the appearance
of and potential for bias, not actual, proven bias. Due process
thus mandates a “stringent rule” for judicial conduct, and
requires recusal even of judges “who would do their very best
to weigh the scales of justice equally” if the risk of bias is too
high. Murchison, 349 U.S. at 136.

In determining what constitutes a risk of bias that is “too
high,” the Supreme Court has emphasized that no mechanical
definition exists; cases requiring recusal “cannot be defined
with precision” because “[c]ircumstances and relationships
must be considered.” Id.; see also Lavoie, 475 U.S. at 822
(internal citations omitted). The Supreme Court has just re-
affirmed this functional approach. See Caperton, 129 S. Ct. at
2265-66.

The Court’s call for pragmatism is particularly important in
this instance, for capital cases mandate an even “greater
degree of reliability” than other cases do. Murray v. Giarra-
tano, 492 U.S. 1, 9 (1989); Woodson v. North Carolina, 428
U.S. 280, 304 (1976). We are compelled to acknowledge “that
the penalty of death is qualitatively different” from any other
penalty and that “there is a corresponding difference in the
need for reliability in the determination that death is the
appropriate punishment.” Woodson, 428 U.S. at 305. As
required by the Supreme Court, we therefore utilize a func-
 HURLES v. RYAN 9059
tional approach to the facts of this case as they relate to the
Court’s established case law.

[4] The Supreme Court’s judicial bias doctrine has evolved
as it confronts new scenarios “which, as an objective matter,
require recusal.” Caperton, 129 S. Ct. at 2259. The most basic
example of probable bias occurs when the judge “ ‘has a
direct, personal, substantial pecuniary interest in reaching a
conclusion against [one of the litigants].’ ” Crater v. Galaza,
491 F.3d 1119, 1131 (9th Cir. 2007) (quoting Tumey, 273
U.S. at 523). The Court has also held that other financial
interests may mandate recusal, even when they are not “as
direct or positive as [they] appeared to be in [Tumey].” Gib-
son v. Berryhill, 411 U.S. 564, 579 (1973); see also Ward v.
Monroeville, 409 U.S. 57 (1972); Lavoie, 475 U.S. 813. How-
ever, financial conflicts of interest are not the only relevant
conflicts for judicial bias purposes. See Caperton, 129 S. Ct.
at 2260 (explaining that judicial bias doctrine encompasses “a
more general concept of interests that tempt adjudicators to
disregard neutrality”). The Court has thus required recusal if
the judge “becomes ‘embroiled in a running, bitter controver-
sy’ ” with one of the litigants, id. at 2262 (quoting Mayberry
v. Pennsylvania, 400 U.S. 455, 465 (1971)); if she becomes
“enmeshed in matters involving [a litigant],” Johnson v. Mis-
sissippi, 403 U.S. 212, 215 (1971); or “if the judge acts as
‘part of the accusatory process,’ ” Crater, 491 F.3d at 1131
(quoting Murchison, 349 U.S. at 137). At bottom, then, the
Court has found a due process violation when a judge holds
two irreconcilable roles, such that her role as an impartial
arbiter could become compromised. Murchison, 349 U.S. at
137; see also Crater, 491 F.3d at 1131.

B. AEDPA Deference

[5] AEDPA applies to any claim “adjudicated on the mer-
its” by a state court, 28 U.S.C. § 2254(d), meaning the state
court decision “rest[ed] on substantive, rather than procedural,
grounds.” Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir.
9060 HURLES v. RYAN
2004). The applicable state court decision is the “last reasoned
decision” addressing a claim. Barker v. Fleming, 423 F.3d
1085, 1091 (9th Cir. 2005) (citations omitted). Because the
Arizona Supreme Court summarily denied Hurles’s appeal on
this claim without comment, we “look through” that opinion
to the last reasoned decision, Judge Hilliard’s denial of Hur-
les’s second PCR. Ylst v. Nunnemaker, 501 U.S. 797, 806
(1991). Ordinarily, the state court’s factual findings would be
entitled to a presumption of correctness under AEDPA. 28
U.S.C. § 2254(e)(1). However, such deference is only war-
ranted if the state court’s fact-finding process survives the
intrinsic review of Section 2254(d)(2). See Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004). In other words, the state
court decision must not be “based on an unreasonable deter-
mination of the facts.” 28 U.S.C. § 2254(d)(2).

[6] In this case, the state court fact-finding process was
fundamentally flawed. Judge Hilliard granted no evidentiary
hearing or other opportunity for Hurles to develop his claim.
Hurles had alleged that Judge Hilliard was improperly
involved in the special action proceeding before the Arizona
Court of Appeal, in which Hurles had appealed her denial of
his request for additional counsel. As discussed above, Judge
Hilliard filed a responsive pleading through her counsel, the
Arizona Attorney General’s office, arguing the merits of her
decision. Hurles alleged that statements in Judge Hilliard’s
brief were attributable to her, and that the brief contained
inappropriate statements about the merits of Hurles’s case and
the competence of his attorney before trial had begun. He
argued that Judge Hilliard’s involvement in the special action
—which the Court of Appeals had found improper—rendered
her unfit to continue presiding over his trial and sentence and
that she should have recused herself.

[7] Instead of providing a forum for Hurles to present and
develop evidence to establish his claim, Judge Hilliard
“found” facts based on her own recollections and factual
assertions about her conduct. She concluded that she was not
 HURLES v. RYAN 9061
in fact involved in the Special Action proceeding, that the
brief filed in her name was not her brief, and that statements
in the brief could not be attributed to her. In effect, she testi-
fied through her order denying Hurles’s second petition for
post-conviction relief. See Minute Entry, Aug. 9, 2002, at 2,
Hurles v. Schriro, No. CIV-00-0118-PHX-RCB (D. Ariz.
2008), ECF 72-1 at 19 (“Minute Entry”) (“[T]he 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.”). Hurles had no opportunity to
challenge Judge Hilliard’s own claimed memory and under-
standing of events which had taken place years prior. This
procedure is inherently inadequate to evaluate the merits of
Petitioner’s claim. In fact, it is not a procedure at all. See In
re Murchison, 349 U.S. 133, 138 (1955) (“Thus the judge
whom due process requires to be impartial in weighing the
evidence presented before him, called on his own personal
knowledge and impression of what had occurred in the grand
jury room and his judgment was based in part on this impres-
sion, the accuracy of which could not be tested by adequate
cross-examination.”); Buffalo v. Sunn, 854 F.2d 1158, 1165
(9th Cir. 1988) (finding error when the court relied on “per-
sonal knowledge” to resolve a disputed issue of fact).

[8] We have repeatedly held that where a state court makes
factual findings without an evidentiary hearing or other
opportunity for the petitioner to present evidence, “the fact-
finding process itself is deficient” and not entitled to defer-
ence. Maddox, 366 F.3d at 1001 (“If, for example, a state
court makes evidentiary findings without holding a hearing
and giving petitioner an opportunity to present evidence, such
findings clearly result in an ‘unreasonable determination of
the facts.’ ”); see also Perez v. Rosario, 459 F.3d 943, 950
(9th Cir. 2006) (“In many circumstances, a state court’s deter-
mination of the facts without an evidentiary hearing creates a
presumption of unreasonableness.”) (citations omitted); Nunes
v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003), cert. denied,
9062 HURLES v. RYAN
543 U.S. 1038 (2004) (“[W]ith the state court having refused
[petitioner] an evidentiary hearing, we need not of course
defer to the state court’s factual findings—if that is indeed
how those stated findings should be characterized—when
they were made without such a hearing.”); Killian v. Poole,
282 F.3d 1204, 1208 (9th Cir. 2002), cert. denied, 537 U.S.
1179 (2003) (“Having refused [petitioner] an evidentiary
hearing on the matter, the state cannot argue now that the nor-
mal AEDPA deference is owed the factual determinations of
the [state] courts.”); Weaver v. Thompson, 197 F.3d 359, 363
(9th Cir. 1999) (finding no deference warranted where factual
findings “were not subject to any of the usual judicial proce-
dures designed to ensure accuracy” because “[t]he judge was
not under oath when he wrote the letter, the bailiff was not
under oath when relaying her account of events to the judge,
and neither the judge nor the bailiff was ever questioned by
counsel for either side”); cf. Fero v. Kerby, 39 F.3d 1462,
1479 n.24 (10th Cir. 1994) (“[Petitioner] raised the issue of
judicial bias in his first post-trial motion for a new trial and
had the benefit of an evidentiary hearing on that claim.”). This
case presents an especially compelling example of a defective
fact-finding process, where the facts “found” by Judge Hil-
liard involved her own conduct and her “findings” were based
on her own untested memory and assertions.

[9] The dissent suggests that we are re-casting legal dis-
putes as factual ones in order to escape the constraints of
AEDPA. However, we are bound to confront factual disputes
relevant to this claim. Judge Hilliard’s resolution of Hurles’s
due process claim was predominantly a factual one. She did
not review her participation in the special action and the state-
ments in her brief and conclude that they did not constitute a
potential for bias, nor did she review the Arizona Court of
Appeals’s decision and conclude that it indicated no unconsti-
tutional potential for bias. Rather, she supplied additional
facts that, in her judgment, rendered her conduct proper and
prevented the brief’s contents from being attributable to her.
See Minute Entry at 2 (“In the special action in this case, the
 HURLES v. RYAN 9063
Attorney General filed a response on this judge’s behalf but
without any specific authorization of such a pleading. No con-
tact was made by this judge with the Attorney General and
this judge was a nominal party only.”) (emphasis added).
None of these facts was established by the record. To the con-
trary, Hurles contended that Judge Hilliard had “injected
[her]self as a direct adversary” in the special action, that she
“filed her own substantive response” in the proceeding, that
she knew the contents of the briefing filed in her name, and
that those contents were therefore attributable to her. The Ari-
zona Court of Appeals explicitly noted that the record was
ambiguous as to Judge Hilliard’s involvement; the Attorney
General had noted at oral argument that the Judge was not
involved, but there was no other evidence to that effect and
the brief was filed in the Judge’s name. See Hurles, 849 P.2d
at 2 & n.2.

Thus, while the dissent appears to characterize Judge Hil-
liard’s decision as solely a legal determination based on
undisputed facts, Judge Hilliard’s own (factual) reasoning
belies that characterization of this case. Indeed, she clarifies
in her order that the defect in Hurles’s due process claim is
a lack of sufficient “factual evidence to support his allega-
tions,” but she then fails to afford him a hearing or other
opportunity to develop such factual evidence. Minute Entry at
2. The dissent relies on Judge Hilliard’s own description of
events, which were not tested or challenged through cross-
examination, in its description of the relevant facts. See Dis-
sent at 9090. Thus, the dissent adopts one disputed view of
the facts at issue here and then claims they are undisputed.4
4
The dissent also seems to suggest that a judicial bias claim based on
appearance of bias could never present a factual question, and that Hurles
has acknowledged as much. Dissent at 9096 n.15. However, that the test
is appearance of bias rather than actual bias does not obviate the need for
facts to support one’s claim. Indeed, all judicial bias claims must proffer
some set of facts that indicate an unconstitutional potential for bias. Hurles
does so by laying out the facts which he contends indicate a potential for
bias and unequivocally arguing that Judge Hilliard’s opinion was based on
an unreasonable determination of the facts.
9064 HURLES v. RYAN
Hurles has always contested Judge Hilliard’s version of the
facts and her determination that she was not involved with the
special action proceeding.

[10] Moreover, Judge Hilliard herself presided over the
collateral proceedings, evaluating Hurles’s claims regarding
her own alleged misconduct during trial and sentencing.
While judges frequently consider contemporaneous motions
for recusal based on their own alleged conflicts of interest, the
Supreme Court has noted the inherently problematic nature of
reviewing such inquiries. See Caperton v. A.T. Massey Coal
Co., 129 S. Ct. 2252, 2263 (2009) (“[Without objective rules,]
there may be no adequate protection against a judge who sim-
ply misreads or misapprehends the real motives at work in
deciding the case. The judge’s own inquiry into actual bias,
then, is not one that the law can easily superintend or review
. . . .”). We note, however, that this case presents a particu-
larly unusual and problematic scenario. Typically, judges’
considerations of their conflicts of interest take place in the
context of contemporaneous motions for recusal before the
allegedly biased proceedings occurred. In that circumstance,
the judge is merely asked to prevent a future harm from
occurring, see, e.g., Tumey v. Ohio, 273 U.S. 510, 515 (1927),
and the judge is charged simply with determining whether
failure to recuse could create a potential for bias. Here, by
contrast, Judge Hilliard provided a post-hoc justification for
her own conduct in response to allegations that she had
already behaved improperly and violated Hurles’s rights. This
unusual posture distinguishes this case from the routine exam-
ples cited by the dissent, dissent at 9097-98, and raises con-
cerns about a judge’s ability to determine impartially whether
she has, in essence, violated the law. See Murchison, 349 U.S.
at 136 (“[N]o man can be a judge in his own case . . . .”).

[11] Based on these flaws in the state court’s fact-finding
process, we find the state court decision resulted in an “unrea-
sonable determination of the facts” and is not entitled to a pre-
sumption of correctness under AEDPA. See Maddox, 366
 HURLES v. RYAN 9065
F.3d at 999 (explaining that application of the “ ‘unreasonable
determination’ clause” is appropriate to situations in which
“the process employed by the state court is defective”) (cita-
tions omitted). We therefore turn to consider Hurles’s judicial
bias claim.

C The Merits of the Judicial Bias Claim

In this case, at least three problems raise an unconstitu-
tional potential for bias given Judge Hilliard’s later role as the
sole arbiter of Hurles’s sentence: (1) her unnecessary and
improper participation in the special action to defend her own
ruling against the defendant5; (2) her troubling comments
about the simplicity of his case and the overwhelming evi-
dence of guilt that she made before a single witness had testi-
fied; and (3) her comments questioning the competence of
Hurles’s attorney. Taken together, these unique facts point to
the overarching conclusion that Judge Hilliard held two
incompatible roles: that of arbiter and that of adversary.
Therefore, Judge Hilliard’s recusal was required in order to
protect Hurles’s due process right to a fair trial.6
5
The Arizona Court of Appeals found the judge’s conduct to be
improper and characterized this type of intervention in a special action
proceeding as one indicating that the trial judge has abandoned her neutral
role. See Hurles v. Superior Court, 849 P.2d 1, 3 (Ariz. Ct. App. 1993)
(internal quotations omitted).
6
The dissent emphasizes the fact that another trial court judge, Judge
Ballinger, reviewed and denied Hurles’s motion to recuse Judge Hilliard
from presiding over his second petition for post-conviction review. Dis-
sent at 9097-98 & n.16. First, under AEDPA, our review is focused on the
last reasoned state court decision, which is Judge Hilliard’s denial of Hur-
les’s second state post-conviction petition. Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991). Therefore, Judge Ballinger’s decision is not the decision
we are reviewing. Second, Judge Ballinger’s four-sentence, unreasoned
minute order does not purport to rule on the merits of Hurles’s judicial
bias claim (or any of his other claims for post-conviction relief); rather,
it simply denies Hurles’s motion for a change of judge for cause. It con-
tains no analysis of the facts or applicable law at issue in the case, and
makes no pronouncement as to the merits of any of Hurles’s claims.
9066 HURLES v. RYAN
Respondent highlights the fact that Hurles did not raise his
judicial bias claim sooner (either at trial or on direct appeal)
and that the Arizona Court of Appeals did not seek Judge Hil-
liard’s recusal in the aftermath of its decision denying her
standing in the special action. We find these arguments unper-
suasive for several reasons. First, to the extent that the respon-
dent raises a procedural argument regarding the timing of
Hurles’s judicial bias claim, it is meritless. No party has
directly argued that Hurles failed to exhaust or has otherwise
waived or defaulted on his judicial bias claim. The Arizona
Superior Court did not consider or find any procedural prob-
lems with Hurles’s claim; rather, the court reached the merits
of Mr. Hurles’s claim and denied it on the merits. Indeed, the
claim was exhausted through “one complete round of the
State’s established review process,” the state court denied the
claim on the merits, and it is now properly before us.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addition, whether Hurles would have been better served
by seeking Judge Hilliard’s recusal earlier, or whether the
Arizona Court of Appeals should have sought her recusal,
does not control our current evaluation of the claim. The bur-
den is on the judge to disqualify herself, even if a party never
seeks recusal. See 17A Ariz. Rev. Stat. Sup. Ct. Rules, Rule
81, Code of Jud. Conduct, Rule 2.11(A) (“A judge shall dis-
qualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned.”)
(emphasis added); see also, e.g., 28 U.S.C. § 455(a) (same).
Furthermore, Hurles has raised ineffective assistance of coun-
sel claims with regard to both his trial and appellate counsel.
We do not reach or decide these claims because the judicial

Finally, that one judge has ruled differently in a particular case is not by
itself persuasive in a case where, as here, the specific ruling at issue
(Judge Ballinger’s order) is not entitled to any deference. Habeas review
(and indeed, appellate review more generally) presupposes numerous ear-
lier judgments against a petitioner. Our role is to determine whether those
prior decisions should stand under governing law.
 HURLES v. RYAN 9067
bias claim is dispositive, but we hesitate to lend persuasive
weight to the fact that he did not raise his judicial bias claim
while represented by those attorneys.

1. Judge Hilliard’s Adversarial Role

Judge Hilliard injected herself into a special action pro-
ceeding in which Hurles appealed her denial of his request for
additional counsel and argued that she had abused her discre-
tion. As noted above, while special action proceedings in Ari-
zona require the trial judge to be named as the nominal
respondent, this is typically a mere formality and does not
warrant any response or active participation by the judge.
Hurles, 849 P.2d at 2. In this case, however, Judge Hilliard
filed a responsive pleading through her counsel, the Arizona
Attorney General’s office, arguing the merits of her decision.

[12] The Arizona Court of Appeals issued a published
opinion denying the judge’s standing to appear in the special
action and finding that her responsive pleading was improper.
Id. at 4. Specifically, the court held that judges may not file
responsive pleadings in special action proceedings solely to
make “I-ruled-correctly” arguments. Id. Such conduct, the
court found, transformed the judge’s role from that of an
impartial arbiter to that of an adversary. Specifically, the court
characterized this kind of intervention as follows:

[T]he trial judge, that impartial dispenser of justice
. . . stands before the appellate tribunal to defend his
ruling and his honor. The trial judge is no longer
impartial. He is an adversary and an advocate.

Id. at 3 (quoting State ex rel. Dean v. City Court, 598 P.2d
1008, 1010 (Ariz. Ct. App. 1979)). The court thus ruled that
her conduct was improper because it threatened a “principle
. . . essential to impartial adjudication,” that judges have “no
personal stake—and surely no justiciable stake—in whether
they are ultimately affirmed or reversed.” Id. at 4 (emphasis
9068 HURLES v. RYAN
in original). Despite this ruling, Judge Hilliard continued to
preside over Hurles’s trial and unilaterally determined his
death sentence after he was convicted.7

[13] Respondent argues that Judge Hilliard was a mere
nominal party in the special action proceedings. However, the
Arizona Court of Appeals’s decision specifically drew a dis-
tinction between judges who behave as “nominal” parties and
those who, despite the fact that no response or appearance is
required, nonetheless appear and submit arguments on their
own behalf. The court then determined that, within the cate-
gory of the more active parties, some kinds of responses are
proper (those based on administrative or policy-based argu-
ments) and some are improper (those that defend the judge’s
decision against the petitioner’s claim). Id. at 3. Thus, the
Court of Appeals found that Judge Hilliard was neither a stan-
dard nominal party, nor an appropriate active party. Instead,
it agreed with the Dean court’s assessment that participation
such as Judge Hilliard’s in the special action transformed the
trial judge into “an adversary and an advocate.” Id. at 3.

The dissent argues that we overstate the Arizona Court of
Appeals’s characterization of Judge Hilliard’s participation in
the special action as “improper”; rather, according to the dis-
sent, the court “merely resolved two competing lines of
authority and determined that a trial judge lacks standing to
defend a specific ruling in a special action proceeding.” Dis-
sent at 9089. This is a strained reading of the Court of
Appeals’s opinion. That its decision was an important and
strong rebuke of active judicial participation in special actions
is apparent from Judge Hilliard’s statement in her later Min-
ute Entry that “judges no longer file an ‘improper’ response
in special actions since the court’s decision in Hurles v. Supe-
rior Court.” Minute Entry at 3. Indeed, even the Arizona
7
Arizona’s system of allowing judges to deliver death sentences without
a jury has since been held unconstitutional. Ring v. Arizona, 536 U.S. 584,
596-97 (2002).
 HURLES v. RYAN 9069
Attorney General’s Office, which represented Judge Hilliard
in the special action, conceded that the Court of Appeals’s
opinion was concerned with protecting the impartiality of
judicial proceedings that was threatened by participation such
as Judge Hilliard’s. See Opp. to Mot. to Recuse at 2, Hurles
v. Schriro, No. CIV-00-0118-PHX-RCB (D. Ariz. 2008), ECF
72-6 at 24 (“The [Arizona Court of Appeals] held that . . . it
is improper for a judge to [act as Judge Hilliard did]. . . . The
court reasoned that when a judge responded to a special action
and claimed that he or she had ruled correctly, it placed the
judge at odds with the party who filed the special action,
which might affect the perception of impartiality of the pro-
ceedings.”) (emphasis added) (internal citations omitted).

Respondent argues that regardless of how we classify Judge
Hilliard’s participation, we should not consider statements in
the responsive pleading to be statements by the judge. How-
ever, while Judge Hilliard recalls that she was not involved,
Colleen French, her counsel, conceded otherwise. In a brief
filed with the district court in Hurles’s federal habeas pro-
ceedings, Ms. French stated, “Undersigned Counsel’s com-
munications with the Trial Judge during the special action
proceedings cannot be construed to have been ex parte
because Undersigned Counsel represented the Trial Judge at
the time they occurred.” Response to Pet.’s Mot. to Disqualify
at 6, Hurles v. Schriro, No. CIV-00-0118-PHX-RCB (D. Ariz.
2008), ECF 27. Thus, her level of personal involvement in the
special action is, at best, contested.

[14] Even if we accept Judge Hilliard’s averment that she
had no direct involvement in the special action, however, we
may still properly attribute statements in the brief to her for
at least two reasons. First, the responsive pleading was in the
judge’s name, as stated in the introduction.8 This statement is
8
“Respondent Judge Hilliard, through her attorneys undersigned, hereby
enters her response to Petitioner’s petition for special action.” Response
to Pet. for Special Action, CV-93-0046-SA (Mar. 1, 1993).
9070 HURLES v. RYAN
no different from the language used by counsel for Hurles.9
The presumption that statements in one’s name are statements
of that person is a logical one, and there is no reliable evi-
dence in the record that demonstrates otherwise.10 The Judge
also received copies of the briefing and therefore had an
opportunity to object to any statements made on her behalf,
which the record indicates she did not do. It is unclear why
statements of a client’s attorney should not be imputed to the
client in this instance, as they are in every other scenario.
Whether Judge Hilliard herself actually wrote the language in
her special action brief is irrelevant. She was the respondent
and the brief was filed in her name; statements in the brief are
therefore attributable to her. We need not inquire further into
her subjective state of mind, especially given the Court of
Appeals’s treatment of the issue as a pleading filed by her.
Hurles, 849 P.2d at 4 (“We come then to the question which
sort of pleading the responding judge has offered in this
case.”) (emphasis added).

Second, petitions for review in the Arizona Supreme Court
challenging the Court of Appeals’s decision in the special
action refer to the judge’s responsive pleading with the pre-
sumption that they are her arguments, just as the statements
of counsel are always the statements of the client. The presid-
ing criminal judge of the Maricopa County Superior Court,
Ronald S. Reinstein, petitioned for a special action to the Ari-
zona Supreme Court following the Court of Appeals’s ruling
in Hurles v. Superior Court in order to defend the judges’
9
“Petitioner, Richard Hurles, by and through his undersigned counsel,
respectfully petitions the Court . . . .” Pet. for Special Action, CV-93-
0046-SA (Feb. 18, 1993).
10
The dissent attempts to distance Judge Hilliard from the special action
proceeding by referring to the brief as simply “submitted in Judge Hil-
liard’s name” and without her involvement. Dissent at 9096. This linguis-
tic strategy merely highlights the key factual dispute in this case: whether
and how much Judge Hilliard was involved in the special action. The dis-
sent and Judge Hilliard resolve this dispute by pointing to Judge Hilliard’s
factual testimony submitted in her minute entry.
 HURLES v. RYAN 9071
ability to appear in such proceedings. See Pet. for Special
Action, CV-93-0135-SA (Apr. 20, 1993). In that petition,
Judge Reinstein referred to the pleadings in the Hurles special
action as “Judge Hilliard’s response,” id. at 6, and highlighted
the direct participation of judges in defending their rulings or
policies in special action proceedings. Judge Reinstein’s peti-
tion makes no distinction between the judge and any other cli-
ent, who may be represented by counsel but is nonetheless
speaking directly through his or her legal pleadings. Judge
Reinstein also argues that if judges are not able to appear in
special actions like Hurles’s—actions in which the state has
no standing to appear—the proceeding would “completely
lose[ ] its adversarial quality.” Id. at 4. The Superior Court’s
presiding criminal judge thus assumed judges in this type of
posture are indeed adversaries of the party bringing the
appeal.

The Arizona Attorney General, Grant Woods, also peti-
tioned the Arizona Supreme Court for a special action follow-
ing the Court of Appeals’s ruling, seeking to have the Court
decide whether the Attorney General’s Office could continue
to represent judges in special action proceedings given the
court’s concern over potential conflicts of interest. Pet. for
Special Action, CV-93-0134-SA, at 5-6 (Apr. 20, 1993). The
petition argues that if the Attorney General cannot represent
judges, they would have to appear themselves or hire private
counsel. Id. This presumes a standard attorney-client relation-
ship in which the primary actor is the client, Judge Hilliard,
not the Attorney General, her counsel. Therefore, we con-
clude that statements in the brief are properly attributable to
Judge Hilliard.

2. Statements About the Case

[15] In addition to the fact of Judge Hilliard’s participa-
tion, the brief itself contains numerous troubling statements
about the merits of Hurles’s case. These statements display a
familiarity with, and prejudgment of, the facts of his case long
9072 HURLES v. RYAN
before any evidence had actually been presented. Judge Hil-
liard’s brief describes the nature of Hurles’s case, concluding
that it was “very simple and straightforward,” with an over-
whelming amount of evidence assembled to demonstrate his
guilt for the “brutal murder.” While any judge would need to
make a determination as to whether additional counsel is
needed by evaluating the relative complexity of a case, here
it is the manner in which Judge Hilliard dismissed Hurles’s
case as “simple” that is problematic. Rather than discussing
the simplicity of the case with reference to the number of
expert or percipient witnesses that would need to be prepared,
the number of trial days the case would likely call for, or
other content-neutral factors, Judge Hilliard referred to the
case as “simple” because the state had already purportedly
amassed overwhelming evidence of guilt against the defen-
dant. She writes:

The State’s evidence at this point includes, but is not
limited to the following: eyewitness statements indi-
cating that Petitioner was seen running from the
Buckeye library after a witness saw a woman bleed-
ing profusely inside the locked library building, Peti-
tioner’s statement to his brother that he had stabbed
someone at the library, Petitioner’s shirt and pants
stained with blood of the same PGM type as the vic-
tim’s, Petitioner’s footprint in the victim’s blood at
the scene, and the fact that books returned by Peti-
tioner in the return slot at the library place him at the
scene a[t] the time of the murder.

This description leads to only one conclusion. According to
Judge Hilliard, the case was simple because he was obviously
guilty.

The dissent’s contention that the proceeding “involved an
evaluation of the evidence only for purposes of determining
whether a second counsel was necessary” assumes the conclu-
sion it wishes to draw. Dissent at 9092-93. Judge Hilliard’s
 HURLES v. RYAN 9073
analysis is quite different from, for example, a detached deter-
mination that the case was simple because it would require
very little witness preparation. In fact, on such neutral mea-
sures, the case was not simple at all. Judge Hilliard acknowl-
edged that the State had already listed “22 witnesses to be
called at trial” and that the defense witness list was at that
time unknown. While Judge Hilliard attempted to characterize
the scientific evidence required as minimal, by her own
admission there would be, at a minimum, blood, fingerprint,
and footprint analysis. In addition, she focuses solely on guilt-
phase evidence without mention of the sentencing process,
one of Hurles’s counsel’s chief justifications for requesting
additional counsel. As the subsequent competency evaluations
and testimony at trial and sentencing showed, Hurles’s per-
sonal and family background required extensive investigation
into a multitude of alleged mitigating factors. Moreover, she
gives short shrift to the need for extensive investigation on the
part of Hurles’s attorney to prepare a defense, including
alleged bases for legal insanity. Indeed, the evidence amassed
by the prosecution posed significant challenges for the
defense. That the prosecution appeared to have a strong case
for guilt does not render the defense’s job easier or “simpler.”
To the contrary, the more evidence the prosecution has, the
more challenging it would be for the defense to put on a good
case. Therefore, Judge Hilliard could not have been referring
to the case as “simple” in any technical sense. There is no
plausible reading of Judge Hilliard’s statements other than
that the case’s resolution was a foregone conclusion.

[16] Judges are free to form opinions based on evidence
presented in the same or earlier cases involving the litigant in
question without offending notions of due process. See Crater
v. Galaza, 491 F.3d 1119, 1130-32 (9th Cir. 2007) (finding no
due process violation where the judge’s opinions as to the
likelihood of a guilty verdict against defendant was based on
evidence presented in an earlier, now complete, proceeding
against his co-defendant for the same incident). In this case,
however, the judge’s opinions were formed long before trial
9074 HURLES v. RYAN
and before any evidence had been presented. Indeed, the brief
presumes that the State’s amassed evidence is virtually unas-
sailable, for if there were flaws in the scientific evidence, then
the time required to prepare a vigorous defense would be
much more significant than Judge Hilliard suggests.11 Judge
Hilliard’s statements thus indicate a prejudgment of the case
against Hurles months before she would preside over his trial
and, later, unilaterally sentence him to death and adjudicate
his post-conviction claims for relief.

3. Statements About Hurles’s Counsel

[17] Finally, Judge Hilliard challenged the professionalism
of Hurles’s attorney, whose credibility would later be impor-
tant as Hurles’s sole counsel during the trial and sentencing
proceedings. She argued that the attorney’s insecurity over
handling the case on her own placed her competence in doubt.
Judge Hilliard stated:

[I]f Appointed Counsel believes, because of her
caseload, personal competence, or otherwise, that
she is incapable of rendering “competent representa-
tion” of the Petitioner, she is ethically bound to with-
draw from this case, and, quite possibly, to withdraw
her name from the list of lawyers who contract to
provide defense services on behalf of Maricopa
County as well. Clearly there are other attorneys
who provide contract services for Maricopa County
11
Judge Hilliard’s brief lacks any equivocation as to the strength of the
State’s purported evidence. For example, eyewitnesses do not “claim” or
“allege” to have seen Hurles at the library, but rather they “indicate” that
he was indeed at the library. Similarly, Hurles’s “footprint [was] in the
victim’s blood,” and evidence “place[s] him at the scene a[t] the time of
the murder.” This language leaves no doubt as to what the factual findings
should be in Hurles’s case, even though many months would pass before
any evidence would actually be presented in court and be subject to cross-
examination.
 HURLES v. RYAN 9075
who would be able to provide competent representa-
tion in a case as simple as this.

This point was entirely superfluous to the brief and appears
designed merely to question the competence of an attorney
who determined she needed assistance in a capital case.
Indeed, in addition to questioning her competence in this par-
ticular case, the brief even raises the prospect that this attor-
ney should no longer receive gainful employment from
Maricopa County if she did not have the “personal compe-
tence” to do so. After having raised questions about Hurles’s
only legal counsel in pleadings to the Arizona Court of
Appeals, Judge Hilliard then had sole responsibility for deter-
mining the credibility of mitigating evidence presented by that
attorney. Taken together with her comments about the merits
of Hurles’s case, such direct pre-judgment raises an unconsti-
tutional probability of bias.

*****

Based on these three deficiencies flowing from the special
action proceeding, the “average” judge would be tempted “not
to hold the balance nice, clear, and true.” Tumey v. Ohio, 273
U.S. 510, 532 (1927). Judge Hilliard’s conduct falls within
the parameters of behavior prohibited by clearly established
Supreme Court precedent. In Murchison, for example, the
Court found an appearance of bias where the judge who had
acted as a “one-man grand jury” later presided over the defen-
dant’s contempt trial relating to his conduct before the judge
in that grand jury. In re Murchison, 349 U.S. 133, 137 (1955).
The Court determined that “the judge had a conflict of interest
at the trial stage because of his earlier participation followed
by his decision to charge them.” Caperton v. A.T. Massey
Coal Co., 129 S. Ct. 2252, 2261 (2009) (describing the hold-
ing of Murchison). Similarly, in Johnson v. Mississippi, the
Court evaluated a judge’s fitness to preside over the petition-
er’s criminal contempt proceeding. 403 U.S. 212, 215 (1971).
The judge had previously been named as a defendant in a sep-
9076 HURLES v. RYAN
arate civil rights suit brought by the petitioner, and subse-
quently made “intemperate remarks” about civil rights
litigants. Id. Based on the judge’s status as an adversary in the
petitioner’s civil rights suit and his remarks about litigants
such as the petitioner, the Court determined that he was too
“enmeshed in matters involving [the] petitioner” to preside
over his contempt proceeding. Id.

[18] As in Murchison and Johnson, here the judge’s con-
flict of interest at the trial and sentencing stages arose from
her “earlier participation” as a direct party in the special
action proceeding. Caperton, 129 S. Ct. at 2261. The Murchi-
son Court distinguished these circumstances from one in
which a judge simply responded to conduct in open court.
Murchison, 349 U.S. at 137. Similarly, Judge Hilliard’s initial
denial of the motion for additional counsel is not the basis for
any claim of bias, nor was her status as a nominal respondent
in the special action. Rather, it was her direct participation in
the special action that made her “part of the accusatory pro-
cess” and rendered her ineligible to preside over the remain-
der of Hurles’s case. Id.

The dissent attempts to distinguish Murchison and Johnson
because Judge Hilliard (a) was only a party in an ancillary
proceeding, rather than in the trial itself, (b) did not assume
a “prosecutorial role” in Hurles’s case, and (c) did not appear
to have “personal animus” towards Hurles. Dissent at
9092-93. This misconstrues the two cases. First, the sources
of the bias at issue in both Murchison and Johnson were sepa-
rate pretrial proceedings. Id.; Johnson, 403 U.S. at 215. Other
courts have also construed Supreme Court case law to apply
more broadly to the process as a whole. See, e.g., United
States v. Meyer, 462 F.2d 827, 842 (D.C. Cir. 1972) (describ-
ing necessity for recusal when the judge “has adopted an
adversary posture with respect to the alleged contemnor, as in
Murchison and Johnson”).

Second, the fact that Hurles initiated the special action pro-
ceeding and Judge Hilliard did not have a direct prosecutorial
 HURLES v. RYAN 9077
role is of no import. Indeed, we find no authority for the prop-
osition that whether a judge affirmatively creates the conflict
determines whether she can proceed impartially. Johnson
itself involved a judge who had been named as a defendant in
the petitioner’s civil rights suit. Johnson, 403 U.S. at 215.
Murchison likewise does not state that the judge must be the
initiator or instigator of the accusatory process; it states
instead that she must recuse herself if she becomes “part” of
the accusatory process. A defendant such as Judge Hilliard is
still part of the process to the extent that she was an adversary
in the special action and then proceeded to preside over Hur-
les’s trial and single-handedly determine his sentence. See
also Smith v. Lockhart, 923 F.2d 1314, 1322 n.12 (8th Cir.
1991) (finding that judge should have disqualified himself
because he had been “a defendant in Smith’s federal class
action suit”); United States v. Meyer, 462 F.2d 827, 842 (D.C.
Cir. 1972) (emphasis added) (“Thus, the trial judge, by virtue
of his status as a defendant in a suit brought by the alleged
contemnor, was in an adversary posture with respect to him,
and was presumptively biased. This is true even though the
judge’s status as an adversary party was created by an action
of the alleged contemnor (filing suit) . . . .”). Whether Judge
Hilliard was a plaintiff or defendant in the action at issue is
thus irrelevant; what matters is her adversarial posture toward
Hurles.

Finally, the Supreme Court has never required evidence of
“personal animus” in order to demonstrate judicial bias.
Though the Johnson Court made note of the judge’s “intem-
perate remarks . . . concerning civil rights litigants,” Johnson,
403 U.S. at 215, it grounded its holding in the fact that the
judge had previously been an adversary in the petitioner’s
civil rights suit. This comports with the Court’s longstanding
rule, which the dissent recognizes, that a petitioner need not
demonstrate actual bias in order to succeed on his claim. See
Caperton, 129 S. Ct. at 2262-63. Moreover, as discussed
above, Judge Hilliard also made inappropriate statements in
her response brief, statements which suggested she had pre-
9078 HURLES v. RYAN
judged the strength of Hurles’s case. That Johnson happened
to involve more direct evidence of personal animus does not
render it inapplicable here.

Respondent’s position that Judge Hilliard “prevailed” in the
special action, and therefore had no incentive to be biased
against Hurles, is both misleading and logically unsound.
While the Court of Appeals declined to exercise jurisdiction
over the petition for special action, it sided with Hurles in
holding that Judge Hilliard had no standing to appear as more
than a nominal respondent in the case, or in any case with the
posture of Hurles v. Superior Court. In fact, the court issued
an opinion solely to point out the impropriety of the judge’s
actions and to set a precedent against any future involvement
of that kind by a judge in a special action proceeding. Hurles,
849 P.2d at 1 (“This petition for special action presents a sig-
nificant threshold question of standing, which we publish this
order to address.”). Thus, on the subject of the opinion, Judge
Hilliard did not prevail at all; rather, she was called out for
“inappropriate” conduct. Id. at 4. Moreover, depending on the
circumstances of the proceeding, whether the Judge had “pre-
vailed” would not necessarily alter her temptation toward bias
against the defendant. In this case, given the concern
expressed by the Court of Appeals, Judge Hilliard had reason
to be biased against Hurles independent of the fact that the
court did not reach the merits of her order denying additional
counsel.
[19] We emphasize again that it is the highly unusual facts
of this case that compel us to conclude Hurles was denied his
right to due process. As the Supreme Court has noted, “most
questions concerning a judge’s qualifications to hear a case
are not constitutional ones, because the Due Process Clause
of the Fourteenth Amendment establishes a constitutional
floor, not a uniform standard.” Bracy v. Gramley, 520 U.S.
899, 904-05 (1997) (citations omitted). We deal here with a
perfect storm of rare incidents that are unlikely to repeat
themselves. Unlike in Caperton, where the Court had to con-
 HURLES v. RYAN 9079
tend with the possibility that its ruling would unleash a “flood
of recusal motions,” this case presents no such danger. Caper-
ton, 129 S. Ct. at 2265; see id. at 2274 (Scalia, J., dissenting)
(arguing that the Court’s decision would lead to a drastic
increase in judicial bias litigation). First, as Judge Hilliard
herself pointed out, special action appearances by trial judges
no longer occur in the wake of Hurles v. Superior Court.
Thus, this factual scenario is a relic of past practice in Arizona
courts, rare even at the time and nonexistent today. Second,
in this particular case, the judge in question was the sole arbi-
ter of the defendant’s death sentence; she alone weighed the
evidence and determined that Hurles deserved to die. This
practice is no longer constitutionally permissible in the wake
of Ring v. Arizona, 536 U.S. 584, 597-98 (2002). Indications
of probable bias are thus all the more troubling in an excep-
tional case such as this, and the consequences of an unfair
capital sentencing are irreversible. We must therefore con-
clude that “[o]n these extreme facts the probability of actual
bias rises to an unconstitutional level.” Caperton, 129 S. Ct.
at 2265.
IV. CONCLUSION
At oral argument, when counsel was asked what relief she
was seeking for her client pursuant to his judicial bias claim,
she requested only a new sentencing. Therefore, 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.
Because Hurles will receive a new sentencing and, if neces-
sary, a new appeal after his sentence has been determined by
a jury, we do not reach or decide the remainder of his claims
on appeal, including whether his sentencing or appellate
counsel were ineffective, and whether he defaulted on any of
those claims.
REVERSED and REMANDED.
9080 HURLES v. RYAN
IKUTA Circuit Judge, dissenting:

Today the majority overturns a convicted murderer’s capi-
tal sentence, ignoring AEDPA’s command to defer to a state
court’s decision unless it is objectively unreasonable. See Wil-
liams v. Taylor, 529 U.S. 362, 407 (2000). The AEDPA anal-
ysis here is straightforward. During the preliminary phases of
Hurles’s capital trial, the state trial judge denied Hurles’s
motion for appointment of a second attorney. Hurles appealed
that denial in a special action proceeding, and the state Attor-
ney General submitted a brief in the trial judge’s name
defending the ruling. Over seven years later, after an unsuc-
cessful direct appeal and post-conviction proceeding, Hurles
claimed that the trial judge’s participation in the special action
proceeding violated his due process rights and moved for her
recusal from further participation in his case. The trial judge
denied Hurles’s motion and rejected his claim that her partici-
pation in the special action proceeding created an unconstitu-
tional “appearance of bias.” Hurles now claims that this
conclusion is contrary to Supreme Court precedent. Because
there is no clearly established Supreme Court authority that
even hints the trial court’s decision was wrong, we must defer
to its determination and deny the petition. Murdoch v. Castro,
609 F.3d 983, 991 (9th Cir. 2010) (en banc).

The majority’s contrary conclusion that it can avoid
AEDPA deference and grant the petition under § 2254(d)(2)1
is unsupportable. The state court decision at issue is not
“based on an unreasonable determination of the facts,”
1
Section 2254(d)(2) states:
(d) An application for a writ of habeas corpus on behalf of a per-
son in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim— . . . (2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evidence pre-
sented in the State court proceeding.
 HURLES v. RYAN 9081
because it is a legal determination as to whether the undis-
puted facts give rise to an appearance of bias. Neither Hurles
nor the majority has suggested how the state court’s legal con-
clusion on this issue was based on objectively unreasonable
fact-finding. Because there is no basis for avoiding AEDPA
deference here, we are not authorized to grant habeas relief.
§ 2254(d). I respectfully dissent.

I

Because an objective view of the facts and procedural his-
tory of Hurles’s case is crucial to a correct understanding of
the legal issues in dispute, I briefly recount the relevant
sequence of events.

A

The facts of Hurles’s crime form the backdrop for the dis-
pute over whether Hurles needed a second attorney, which is
at the heart of his habeas claim. The Arizona Supreme Court
provided the following description:

On the afternoon of November 12, 1992, Hurles
went to the Buckeye public library, a small, house-
type building in a residential neighborhood. The only
employee in the library at the time was Kay Blanton.
The last patron, other than Hurles, left the library
just before 2:40 p.m. Hurles then locked the front
doors to the library and attacked Blanton in the back
room. He stripped off her underwear and pulled her
skirt above her waist in an unsuccessful attempt to
rape her. Using a paring knife found in the back
room of the library, Hurles mortally wounded Blan-
ton, stabbing her thirty-seven times and inflicting
blunt force trauma by kicking her to such an extent
he tore her liver. [Hurles then fled the scene.]

....
9082 HURLES v. RYAN
Between 3:00 and 4:00 p.m., Hurles rode [a bor-
rowed] bicycle to the home of his nephew, Thomas,
in Buckeye and asked Thomas for a ride to Phoenix.
Hurles had changed his clothes and cleaned himself
up somewhat, and Thomas, who had been asleep and
was unaware of Blanton’s murder, agreed to drive
Hurles to Phoenix. As the two left the house, Hurles
was carrying a bundle of clothes. During the drive to
Phoenix, Thomas noticed that Hurles had bite marks
on his wrist. When asked about them, Hurles told
Thomas he had been in a fight with a Spanish man
at the library, that he had stabbed the man with the
man’s knife, and that he had received the bite marks
in the fight. As part of his insanity defense, however,
Hurles later claimed he had no recollection of any-
thing that occurred between sitting in the library and
going out the back door.

As they continued toward Phoenix, Hurles had
Thomas pull over so he could toss the bundle of
clothes out the car window. Thomas left Hurles at a
Phoenix bus station, where he purchased a bus ticket
to Las Vegas. Thomas returned to Buckeye, where
he ultimately made contact with the police and told
them of Hurles’ destination. Later that evening, the
police intercepted Hurles’ bus on the way to Las
Vegas; Hurles was removed from the bus, arrested,
and returned to Phoenix.

With Thomas’ help, the police recovered Hurles’
discarded clothes. Police found blood on the clothing
that matched Blanton’s blood type, which occurs in
one percent of the population. Police also found
blood matching Blanton’s type on Hurles’ shoes,
which he was still wearing when taken from the bus.
Four bloody shoeprints at the murder scene matched
the soles of Hurles’ shoes, and Hurles’ palm print
was found on the paring knife left at the scene.
 HURLES v. RYAN 9083
....

. . . Blanton would have suffered great terror as
she was stabbed repeatedly by Hurles. She also must
have suffered great pain. In addition to the fifteen
defensive stab wounds on her hands, Blanton was
stabbed eight times in the head, twelve times in the
torso, and twice in her lower extremities. She also
suffered blunt trauma consistent with kicking, which
tore her liver.

The barrage of violence inflicted on Blanton, the
fact that she was conscious throughout the attack,
and her struggle to fight off her attacker all indicate
she suffered terribly and far above the norm of even
first-degree murder, leaving no room to doubt that
this murder was especially cruel.

State v. Hurles (Hurles II), 914 P.2d 1291, 1293-94, 1299
(Ariz. 1996).

B

After Hurles was indicted for this murder, Maricopa
County appointed private defense counsel to represent him.
Hurles made an ex parte motion for the appointment of a sec-
ond counsel to aid in his defense. He argued that he was enti-
tled to a second attorney because: (1) the case would “involve
numerous civilian and law enforcement witnesses”; (2) the
state would have forensic experts testify regarding suspect
identification and sexual assault; and (3) “[p]reparation for the
possible penalty phase in such a case will [be] in itself a time
consuming, complex process.” To support his arguments on
the third point, Hurles cited to California, rather than Arizona,
law. As later noted by the Arizona Court of Appeals, Hurles’s
motion for a second attorney was bare-bones, and failed to
make “a particularized showing on the need for second coun-
sel.” Hurles v. Superior Court, 849 P.2d 1, 4 (Ariz. Ct. App.
9084 HURLES v. RYAN
1993). It made no mention of possible defenses, did not dis-
cuss the size of the defense’s witness pool for either the guilt
or penalty phase, and did not specify any additional forensic
or other technical information the defense would present on
its own account. In short, it provided no substantial factual
basis upon which the trial court could have concluded that a
second attorney was necessary for Hurles to obtain adequate
representation.

After the state trial court denied the request, Hurles filed a
petition for special action in the Arizona Court of Appeals,2
raising the same arguments he had presented in his motion.
Per Arizona’s rules for special actions, Hurles named the
State of Arizona, represented by the office of the Maricopa
County Attorney, as real party in interest, and the trial judge,
Judge Hilliard, as a nominal respondent. Id. at 2. In response,
the Arizona Attorney General filed a brief in Judge Hilliard’s
name, even though, as the Arizona Court of Appeals noted, it
was not clear from the record that Judge Hilliard had even
authorized a pleading to be filed in her name, nor that “there
was [any] contact between Judge Hilliard and the Attorney
General’s office as the pleading was prepared.”3 Id.

The majority bases its claim that Judge Hilliard was biased
primarily (if not solely) on the contents of this brief. First, the
2
Under Arizona law, the denial of a motion for appointment of a second
attorney is not immediately appealable, and so a petitioner seeks review
of such a ruling by filing a petition for special action in the Arizona Court
of Appeals. See Hurles I, 849 P.2d at 1 n.1, 2.
3
The Attorney General explained that the presiding judge of the Mari-
copa County Superior Court requested a responsive pleading in this case.
Hurles I, 849 P.2d at 4. Then-current Arizona precedent held that a judge
had the right to appear in a special action, even though the judge was
merely a nominal party. Fenton v. Howard, 575 P.2d 318, 320 (Ariz.
1978). Because the County is the prosecutor, it could not take a position
on the selection of defendant’s counsel in the special action proceeding,
which led the state Attorney General to step in to respond on the trial
judge’s behalf. Hurles I, 849 P.2d at 1.
 HURLES v. RYAN 9085
majority contends that the brief demonstrates Judge Hilliard’s
view that “the case was simple because [Hurles] was obvi-
ously guilty.” Maj. op. at 9072. The majority’s claim is belied
by an objective reading of the brief. As explained above, Hur-
les’s motion for appointment of a second counsel put at issue
the question whether the case was too complex to be handled
by one attorney. In ruling on the motion, the trial court had
been obliged to consider the extent and complexity of the evi-
dence likely to be presented in order to rule on the motion.
The brief explained the basis for the trial court’s decision. In
response to Hurles’s claim that a second counsel was required
due to the high number of witnesses and forensic experts, the
brief noted that Maricopa County planned to call “relatively
few” witnesses, namely 10 law enforcement agents, the medi-
cal examiner, and several civilians.4 The State also intended
to present the following physical evidence: Hurles’s clothing,
which was “stained with blood of the same PGM type as the
victim’s,” his footprint in the victim’s blood at the library, and
the “fact that books returned by [Hurles] in the return slot at
the library place him at the scene a[t] the time of the murder.”

Turning to Hurles’s legal argument, the brief asserted that
Hurles’s reliance on California precedent was misplaced
because Arizona had adopted different rules, procedures, and
time frames. Specifically, according to the brief, while Cali-
fornia law presumed the necessity of a second attorney in cap-
ital cases, Arizona had no such presumption. Further, in
refuting Hurles’s claim that the need to prepare simulta-
neously for the guilt and penalty phases mandated the
appointment of a second attorney, the brief noted that while
California required sentencing to begin within 20 days of the
verdict, Arizona gave a capital defendant 90 days after the
verdict to prepare for sentencing, as well as the option to seek
4
For example, the State intended to present an eyewitness’s statement
that Hurles ran from the Buckeye library after a witness discovered Blan-
ton bleeding on the library floor, as well as Hurles’s statement to his
brother than he had stabbed someone at the library.
9086 HURLES v. RYAN
an extension of that time for good cause; these procedural dif-
ferences made concurrent preparation for both phases far less
urgent in Arizona than in its sister state. Ariz. R. Crim. P.
26.3. Thus, the majority’s contention that the brief gave “short
shrift” to Hurles’s arguments, or ignored the sentencing phase
and the special burdens of a capital case, Maj. op. at 9072-73,
is wrong.

Finally, the brief opined that defense counsel’s unsupported
request for co-counsel at such an early stage of a case involv-
ing a fairly standard workload and flexible system of dead-
lines amounted to speculation by Hurles’s appointed counsel
that she would render ineffective assistance if she did not
have co-counsel.5

The majority also faults the brief for failing to consider “the
need for extensive investigation” to address the “alleged bases
for legal insanity.” Maj. op. at 9073. But at the time of the
special action, Hurles’s attorney had not yet noticed any
defenses (insanity or otherwise), and Hurles did not argue that
the work involved to prepare an insanity defense was a reason
he needed a second lawyer.

C

Before addressing the merits of the special action petition,
the Arizona Court of Appeals determined that the case raised
“a significant threshold question of standing” that gave the
court the chance to refine its jurisprudence on “whether—or
under what circumstances—the trial court may properly
respond” to a petition for special action. Hurles I, 849 P.2d at
1-2. The court acknowledged that in the seminal case, Fenton
v. Howard, the Arizona Supreme Court had held that “a judge
5
The majority makes much of this statement, Maj. op. at 9074, but it
merely underscores the brief’s argument that the state’s case was simple
and straightforward, making appointment of a second attorney unneces-
sary.
 HURLES v. RYAN 9087
does have the right to appear and to be represented in a spe-
cial action against him, where the judge is a named respon-
dent,” 575 P.2d 318, 320 (Ariz. 1978), and that a later
appellate decision, State ex rel. Dean v. City Court of Tucson,
598 P.2d 1008, 1009 (Ariz. Ct. App. 1979), had interpreted
Fenton as establishing “a trial judge’s unequivocal right to
respond to a special action, whatever the nature of the deci-
sion the judge seeks to defend.” Hurles I, 849 P.2d at 3.6 Not-
withstanding this precedent, the court of appeals concluded
that a later decision, Dunn v. Superior Court, 722 P.2d 1164
(Ariz. Ct. App. 1989), which had interpreted Fenton as allow-
ing a judge to respond to a special action to defend judicial
policy, should govern such cases in the future. Hurles I, 849
P.2d at 3. Building on Dunn, the Arizona Court of Appeals
held that a judge designated as the nominal respondent in a
special action proceeding may file a brief for the purpose of
defending an administrative policy or practice, but “that it is
improper for a judge to respond merely to advocate the cor-
rectness of an individual ruling in a single case.” Id. Applying
its new standing rule to the case before it, the court noted that
because “the pleading merely argues that the respondent judge
ruled properly on the evidence before her . . . the trial judge
lacked standing” to file a brief in the special action. Id. at 4.

Turning its attention to the merits of the special action peti-
tion, the Arizona Court of Appeals agreed with Judge Hil-
liard’s denial of Hurles’s motion to appoint a second counsel.
Because Hurles’s counsel had failed to make “a particularized
showing” on the need for a second lawyer and did not “submit
evidence to the trial court regarding customary practice in
6
The Arizona Court of Appeals noted that Dean had criticized this
result, and quoted Dean’s statement that its ruling allowed the trial judge
to defend “his ruling and his honor,” such that the trial judge “is no longer
impartial.” Hurles I, 849 P.2d at 3 (quoting 598 P.2d at 1010). The major-
ity relies on this critique, Maj. op. at 9067, but fails to note that Dean nev-
ertheless “interpreted Fenton as categorically permitting a special action
response by any nominal-respondent judge.” 849 P.2d at 3.
9088 HURLES v. RYAN
defense of capital cases,” the court “[found] no matter that
warrants special action intervention at this time.” Id.

The majority’s claims that the opinion by the Arizona
Court of Appeals in this case “called out” Judge Hilliard “for
‘inappropriate’ conduct,” Maj. op. at 9078, and constituted
“an important and strong rebuke of active judicial participa-
tion in special actions,” id. at 9068, are contrary to and unsup-
ported by the language of that opinion.7 While the majority
uses the word “improper” nearly ten times to describe the fact
that a brief was submitted on Judge Hilliard’s behalf, see Maj.
op. at 9051, 9056, 9060, 9065 n.5, 9067(twice), 9068, 9069,
the Arizona Court of Appeals used the word “improper” only
twice, to define when it is appropriate for a trial judge to sub-
mit a brief in a special action proceeding (in which case the
7
Lacking support in the text of the Court of Appeals’s opinion, the
majority relies on two statements to buttress its position, one by Judge Hil-
liard, and the other by Assistant Attorney General Colleen French. In her
order rejecting Hurles’s judicial bias claim, Judge Hilliard noted that
“judges no longer file an ‘improper’ response in special actions since the
[Court of Appeals’s] decision in Hurles v. Superior Court.” The majority’s
suggestion that this passage shows Judge Hilliard’s acknowledgment that
the court’s “decision was an important and strong rebuke of active judicial
participation in special actions,” Maj. op. at 9068, is mystifying. If any-
thing, the judge’s use of quotation marks in this context connotes that “im-
proper” was being used as a term of art, following the usage of the Court
of Appeals, rather than its common meaning. The passage cannot fairly be
read as a mea culpa on the part of the trial judge.
Second, the majority quotes the Assistant Arizona Attorney General as
saying: “ ‘The [Arizona Court of Appeals] held that . . . it is improper for
a judge to [act as Judge Hilliard did],’ ” Maj. op. at 9069 (emphasis
added). The unabridged version of this quotation makes clear that the
Court of Appeals was not specifically criticizing Judge Hilliard, but was
formulating a new rule of law. The full quotation reads: “The court held
that a judge named as a respondent in a special action can file a responsive
pleading only to explain or defend an administrative practice, policy, or
local rule, and that it is improper for a judge to respond ‘merely to advo-
cate the correctness of an individual ruling in a single case.’ ” Opp. to
Mot. to Recuse at 2, Hurles v. Schriro, No. CIV-00-0118-PHX-RCB (D.
Ariz. 2008), ECF 72-6 at *25. The majority’s paraphrase is misleading.
 HURLES v. RYAN 9089
judge has standing) and when it is inappropriate (such that the
judge lacks standing).8 Hurles I, 849 P.2d at 3-4. The court
did not use the term “improper” to suggest that a judge who
submits a brief in defense of a particular ruling gives the
appearance of bias or otherwise commits any type of ethical
impropriety.9 Rather, the court of appeals merely resolved two
competing lines of authority and determined that a trial judge
lacks standing to defend a specific ruling in a special action
proceeding.

Finally, it is noteworthy that at the time of the submission
of the brief on behalf of Judge Hilliard, Hurles did not indi-
cate any concern or otherwise flag this event as being out of
the ordinary. Hurles said nothing about a judicial bias concern
before or after the trial in which the jurors unanimously found
him guilty of premeditated and felony murder. Nor did he
raise such a concern at sentencing, where under then-current
Arizona rules, the trial judge acted alone in imposing the
death penalty. Nor did Hurles’s direct appeal or first petition
for post-conviction relief raise a judicial bias claim.10 This
silence detracts from Hurles’s (and the majority’s) position
that the submission of the brief creates the sort of extraordi-
nary situation that gives rise to a “probability of actual bias”
8
The court explained its new rule on standing as follows: “We hold that
it is proper for a judge named as a respondent in a special action to file
a responsive pleading if the purpose of the response is to explain or defend
an administrative practice, policy, or local rule, but that it is improper for
a judge to respond merely to advocate the correctness of an individual rul-
ing in a single case.” See Hurles I, 849 P.2d at 3; see also id. at 4 (“Our
holding that the judge’s responsive pleading was improper makes it unnec-
essary for us to decide the propriety of the Attorney General appearing on
her behalf.”).
9
By contrast, the Arizona Court of Appeals noted that it might be proper
for a judge “attempting to respond to an allegation of ethical impropriety”
to respond in a special action proceeding. 849 P.2d at 3 n.4. The court did
not suggest that Judge Hilliard was guilty of an ethical lapse.
10
Per Arizona Rule of Criminal Procedure 32.4(e), Hurles’s first petition
for post-conviction relief was assigned to Judge Hilliard. The trial court
denied the petition, and the Arizona Supreme Court affirmed.
9090 HURLES v. RYAN
that is “too high to be constitutionally tolerable.” Withrow v.
Larkin, 421 U.S. 35, 47 (1975); see Maj. op. at 9067-78.

D

A year after the court denied his first petition for post-
conviction relief, Hurles filed a motion stating that he
intended to file a second petition for post-conviction relief
that would raise his appearance-of-bias due process claim
based on the special action proceeding. He therefore moved
to recuse Judge Hilliard from further involvement in his case.
Hurles’s recusal motion was referred to a different trial court
judge, Judge Ballinger, who ruled that there was no basis to
transfer Hurles’s case to another judge.11 Hurles then submit-
ted his second petition for post-conviction relief, which was
assigned to Judge Hilliard pursuant to Arizona Rule of Crimi-
nal Procedure 32.4(e) and Judge Ballinger’s determination.
Judge Hilliard noted the applicable objective test under Ari-
zona law for recusal, specifically, “whether a reasonable and
objective person knowing all the facts would harbor doubts
concerning the judge’s impartiality.” In describing the facts of
the special action, Judge Hilliard stated that the Attorney Gen-
eral had no specific authorization to file a pleading on her
behalf in the special action, and that she (Judge Hilliard) had
made no contact with the Attorney General. She further noted
that Hurles had not pointed to any aspects of the trial or the
first petition for post-conviction relief that indicated bias.
Relying on Judge Ballinger’s determination, and applying
Arizona’s objective test, Judge Hilliard ruled that the facts did
not require her recusal as a matter of state law, and did not
amount to a due process violation. Therefore, the court
rejected Hurles’s claim. The Arizona Supreme Court affirmed
without opinion.
11
Judge Ballinger construed Hurles’s motion as a motion for change of
judge for cause, which under Arizona Rule of Criminal Procedure 10.1,
entitles a defendant “to a change of judge if a fair and impartial hearing
or trial cannot be had by reason of the interest or prejudice of the assigned
judge.”
 HURLES v. RYAN 9091
II

As described above, the state trial court determined that
because a reasonable and objective person knowing all the
facts would not harbor doubts about the judge’s impartiality,
Judge Hilliard’s role in presiding over the trial and sentence
did not deprive Hurles of his federal due process rights. The
trial court’s decision is the last reasoned decision on this
claim, and therefore the one that we must consider under
AEDPA review. See Ylst v. Nunnemaker, 501 U.S. 797, 804
(1991). Under § 2254(d)(1) and Supreme Court precedent, we
are tasked with determining whether this determination was
“contrary to” clearly established Supreme Court precedent,
using the analytic framework set forth below.12

“Supreme Court precedent reveals only three circumstances
in which an appearance of bias—as opposed to evidence of
actual bias—necessitates recusal.” Crater v. Galaza, 491 F.3d
1119, 1131 (9th Cir. 2007). These three situations are (1)
when a judge “has a direct, personal, substantial pecuniary
interest in reaching a conclusion against [one of the liti-
gants],” id. (alteration in original) (quoting Tumey v. Ohio,
273 U.S. 510, 523 (1927)) (internal quotation marks omitted);
(2) when “a judge becomes embroiled in a running, bitter con-
troversy with one of the litigants,” id. (quoting Mayberry v.
Pennsylvania, 400 U.S. 455, 465 (1971)) (internal quotation
marks omitted); and (3) when a judge “acts as ‘part of the
accusatory process,’ ” id. (quoting In re Murchison, 349 U.S.
133, 137 (1955)). Here there is no claim that Judge Hilliard
had a pecuniary interest in the prosecution of Hurles. Nor
does the majority suggest that Judge Hilliard was embroiled
in a running feud with Hurles. Instead, the majority relies on
three Supreme Court opinions, Murchison, Johnson, and Caper-
12
Because the state court did not expressly apply the Supreme Court’s
decisions considering when a probability of judicial bias rises to a consti-
tutional level, only the “contrary to” prong of § 2254(d)(1) is at issue here.
See Williams v. Taylor, 529 U.S. 362, 407 (2000).
9092 HURLES v. RYAN
ton,13 as authority for its conclusion that Hurles’s due process
rights were violated because the judge acted as part of the
accusatory process. Maj. op. at 9056-59, 9074-79.

This contention does not survive scrutiny. A state court
decision is “contrary to” clearly established Supreme Court
precedent only if “the state court applies a rule that contra-
dicts the governing law set forth in Supreme Court cases or
if the state court confronts a set of facts materially indistin-
guishable from those at issue in a decision of the Supreme
Court and nevertheless arrives at a result different from the
Court’s precedent.” Lambert v. Blodgett, 393 F.3d 943, 974
(9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 73
(2003)). For AEDPA purposes, a point of law is not “clearly
established” if a state court can draw a “principled distinc-
tion” between the case before it and the Supreme Court prece-
dent establishing that rule of law. Murdoch, 609 F.3d at 991.

Here, not only could a state court draw a principled distinc-
tion between the situation in this case and those in Murchison
and Johnson, but it is quite a stretch to hold that such
Supreme Court precedents apply at all. Murchison involved
the appearance of bias of a Michigan state judge who, while
sitting as a “one-man grand jury,” concluded a witness was
lying, charged him with perjury, and ordered him to show
cause why he should not be convicted of criminal contempt.
13
Because Caperton was decided in 2009, and the state court decision
at issue was decided in 2002, Caperton is not “clearly established
Supreme Court precedent” for purposes of AEDPA review. See Williams
v. Taylor, 529 U.S. 362, 412 (2000) (stating that § 2254(d)(1) requires the
state court’s decision to be measured against the “holdings . . . of [the
Supreme Court’s] decisions as of the time of the relevant state-court deci-
sion”). The majority justifies its reliance on Caperton by asserting it “an-
nounce[s] no new rule of law that would affect our analysis here,” Maj.
op. at 9057 n.3, yet its ten citations to that decision belie this claim and
suggest its centrality to the majority’s reasoning. But because the state
court’s decision was not contrary to Caperton, the majority’s mistaken
reliance on this decision does not help its AEDPA analysis.
 HURLES v. RYAN 9093
349 U.S. at 134. The Court held that a judge could not act as
a grand jury “and then try the very persons accused as a result
of his investigations.” Id. at 137. Unlike Murchison, Judge
Hilliard did not assume a prosecutorial role in Hurles’s case.
In fact, neither Hurles nor the majority even suggests that
Judge Hilliard participated in any way in the formal accusa-
tory process that resulted in Hurles’s trial, over which Judge
Hilliard later presided. Nor can the special action proceeding,
in which Hurles asked the Arizona Court of Appeals to grant
his request for a second defense attorney, be deemed part of
the “accusatory process.” This proceeding, which was ancil-
lary to any determination of guilt or penalty, involved an eval-
uation of the evidence only for purposes of determining
whether a second counsel was necessary.

Similarly, Johnson v. Mississippi, 403 U.S. 212 (1971) (per
curiam), involved a civil rights activist who successfully sued
a state trial judge to enjoin the judge from discriminatory
practices in seating juries. Id. at 214-15. Two days after being
so enjoined, the trial judge found the defendant guilty of crim-
inal contempt in a different case. Id. at 215. The Court con-
cluded that due process would not permit the judge, who had
just lost a civil rights case to the defendant (and therefore was
subject to an ongoing federal injunction), to preside over the
defendant’s contempt trial. Id. at 215-16 (holding that because
the judge had been “a defendant in one of petitioner’s civil
rights suits and a losing party at that,” he was plainly “so
enmeshed in matters involving petitioner” as to require his
recusal). Unlike Johnson, the record here does not show that
Judge Hilliard was “enmeshed” in matters involving Hurles,
nor that someone in her position would likely have a personal
animus toward him. Cf. id. at 215 (noting “the affidavits filed
by the lawyers reciting intemperate remarks of Judge Perry
concerning civil rights litigants”). The majority’s position that
the Arizona Court of Appeals’s ruling on standing would give
rise to a temptation on Judge Hilliard’s part “not to hold the
balance nice, clear, and true,” Maj. op. at 9075 (quoting
Tumey, 273 U.S. at 532), is meritless. With all due respect,
9094 HURLES v. RYAN
the majority’s holding equating a state court ruling that Judge
Hilliard lacked standing, but had ruled correctly on the merits
of the appointment-of-counsel request, with Johnson’s order
enjoining a judge from further racial and gender discrimina-
tion in his courtroom, fails even the straight-face test.

The majority also cites Caperton for the general proposi-
tion that a judge’s failure to recuse may constitute a due pro-
cess violation if “the probability of actual bias on the part of
the judge or decisionmaker is too high to be constitutionally
tolerable.” 129 S. Ct. at 2259 (quoting Withrow, 421 U.S. at
47). Although Caperton is not applicable here, because it was
not clearly established Supreme Court precedent at the time
of the state court decision at issue, the state court’s decision
is not contrary to this rule. The Court has made clear that the
more general the rule laid out by Supreme Court precedent,
the more latitude we must give a state court “to reasonably
determine that a defendant has not satisfied that standard.”
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009). Caper-
ton makes clear that a failure to recuse rises to a constitutional
violation only in the most “exceptional case.” Caperton, 129
S. Ct. at 2263; see also id. (“It is, of course, not every attack
on a judge that disqualifies him from sitting.”) (quoting May-
berry, 400 U.S. at 465). Because the Arizona court’s determi-
nation that the special action proceeding did not rise to such
an exceptional level was not “ ‘diametrically different’
[from], ‘opposite in character or nature’ [to], or ‘mutually
opposed’ to” the rule of Caperton, it is not “contrary to” that
case, and therefore does not violate § 2254(d)(1). Williams,
529 U.S. at 406.

Accordingly, an objective comparison of Hurles’s case to
the Supreme Court decisions discussed above shows beyond
question that the state court’s conclusion was not “contrary
to” clearly established precedent. Because the court is not
 HURLES v. RYAN 9095
relieved of AEDPA deference, the district court was correct
in determining it had no authority to grant habeas relief.14

III

Because the correct application of AEDPA here is straight-
forward, the majority’s anomalous approach to AEDPA is
surprising. Instead of considering whether the state court
opinion was contrary to clearly established Supreme Court
precedent, the majority focuses on whether the opinion was
“an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” Maj. op. at
9056 (quoting § 2254(d)(2)).

A

The crucial flaw in this approach is clear: there are no
material facts in dispute in this case. The ultimate question,
whether a specific fact situation involving a judge “created a
constitutionally intolerable probability of actual bias,” is a
legal question determined by objective rules. See Caperton.
129 S. Ct. at 2262; see also id. at 2263 (stating that the Due
Process Clause “is implemented by objective standards that
do not require proof of actual bias”). Consistent with this
Supreme Court jurisprudence, Hurles focuses solely on appar-
ent bias because, as he explains, “in the context of judicial
conflicts of interest, due process is offended not by proof of
14
Contrary to the requirements of AEDPA, the majority appears to con-
duct a de novo review of the state trial court’s decision sub silentio. Maj.
op. at 9059-65. But even were we authorized to engage in such review,
there is no support for the majority’s conclusion that Hurles’s due process
rights were violated. The Supreme Court has held that a judge’s failure to
recuse raises due process concerns only in “the most extreme of cases.”
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986). Even the majori-
ty’s emotional description of the special action proceeding cannot disguise
the fact that the Attorney General’s submission of a brief supporting Judge
Hilliard’s denial of Hurles’s motion for the appointment of a second coun-
sel does not rise to that level.
9096 HURLES v. RYAN
actual bias (something literally impossible for a party to
prove) but rather by the appearance of impropriety.”15 Given
the “difficulties of inquiring into actual bias,” the Supreme
Court has noted that the judge’s inquiry into his or her own
motives or bias are irrelevant. Id. at 2263. For this reason,
Judge Hilliard’s explanations of her limited role in the pro-
ceeding, which the majority asserts are unreasonable, Maj. op.
at 9064, do not make a difference to the state court’s resolu-
tion of the constitutional issue. In her ruling, Judge Hilliard
explained that the special action brief was drafted without her
input or authorization and that she did not make contact with
the Attorney General during the pendency of the special
action. These are the only “facts” Judge Hilliard “found”
based on her own knowledge. Maj. op. at 9060-61, 9062. But
Judge Hilliard’s views regarding her lack of involvement in
the matter are not relevant to Hurles’s claim that the undis-
puted facts (namely, that a brief was submitted in Judge Hil-
liard’s name in the special action proceeding, the brief
discussed the evidence the State intended to present, and the
brief questioned whether Hurles’s then-current attorney was
able to render competent, effective assistance) gave rise to an
appearance of bias. Said otherwise, Judge Hilliard’s behind-
the-scenes involvement in brief-writing, whether nonexistent,
minimal, or substantial, is irrelevant to Hurles’s claim that the
publicly known facts give rise to a constitutionally intolerable
appearance of bias.
15
Hurles has consistently stressed the themes of “appearance of impro-
priety,” and “structural due process,” rather than any conduct evincing
actual bias on the part of Judge Hilliard. For example, in his Second Peti-
tion for Post-Conviction Relief, Hurles repeatedly emphasizes that due
process sometimes requires recusal of judges who have “no actual bias.”
Hurles also reminded the court that he “need not necessarily demonstrate
actual subjective bias to prevail on [ ]his claim.” Hurles’s reply brief in the
second post-conviction proceeding likewise argued that: “[C]ourts will
find a due process violation upon a showing of a judge’s conflict of
interest—regardless of whether the complaining litigant can demonstrate
any actual subjective bias at all.” Hurles’s own arguments thus undercut
the majority’s claim that the key inquiry in this case is a factual one.
 HURLES v. RYAN 9097
B

The majority tries to escape the force of this conclusion by
asserting that the state court’s decision was based on an
unreasonable fact-finding process. First, the majority claims
that Judge Hilliard erred in resolving the challenge to her own
impartiality. But as the majority acknowledges, Maj. op. at
9064, it is not improper for a judge to rule on his or her own
recusal; rather, it is the standard procedure. Under both fed-
eral and Arizona law, judges typically rule on motions seek-
ing to recuse them from a pending matter, and, where
necessary, they determine the relevant facts. Id.; see, e.g., 28
U.S.C. § 455(a); Ariz. Code of Jud. Conduct R. 2.11(A); see
also Microsoft Corp. v. United States, 530 U.S. 1301,
1301-02 (2000) (statement of Rehnquist, C.J.) (setting forth
the facts regarding his son’s representation of Microsoft in a
different matter, and concluding that those facts did not
require his recusal in a case brought by Microsoft on the same
subject matter because “a well-informed individual would
[not] conclude that an appearance of impropriety exists”
based on those facts); Perry v. Schwarzenegger, No. 10-
16696 (9th Cir. Jan. 4, 2011) (statement of Reinhardt, J.) (set-
ting forth the facts regarding his relationship with his wife and
her involvement in the matter before him and rejecting a
motion to recuse because “a reasonable person with knowl-
edge of all the facts would [not] conclude that [his] impartial-
ity might reasonably be questioned”). The majority asserts
that a judge’s determination about the propriety of recusal in
a pending case is different from the same determination
regarding a past case, Maj. op. at 9063-64, but no principled
distinction can be made. In both situations, the judge must
apply the same objective standard: whether the judge’s impar-
tiality could reasonably be questioned. The majority’s posi-
tion is particularly tenuous in this case: it is hard to argue
convincingly that Judge Hilliard was objectively unreasonable
in deciding Hurles’s recusal motion, given that another Ari-
zona Superior Court Judge, Judge Ballinger, independently
9098 HURLES v. RYAN
reached the same conclusion as Judge Hilliard.16 And as this
discussion has made plain, the majority’s repeated suggestion
that Judge Hilliard behaved “improperly” in submitting a brief
in the special action proceeding (and that the Arizona Court
of Appeals so held) is baseless.

Second, the majority argues that the state court’s fact-
finding process was flawed because the court declined to hold
an evidentiary hearing on Hurles’s appearance-of-bias claim.
Maj. op. at 9059-62. This contention also fails; obviously, an
error in a fact-finding process is irrelevant if there are no
material facts in dispute. In the cases cited by the majority, we
have made clear that an evidentiary hearing is necessary only
when a dispute relates to a material fact that must be resolved
in order to fully adjudicate the habeas petitioner’s claims. See,
e.g., Perez v. Rosario, 459 F.3d 943, 950-51 (9th Cir. 2006)
(“Where there is no likelihood that an evidentiary hearing
would have affected the determination of the state court, its
failure to hold one does not make such determination unrea-
sonable.”); see also Taylor v. Maddox, 366 F.3d 992, 1000-01
(9th Cir. 2004). As already noted, however, there was no such
dispute here: Hurles’s claim that Judge Hilliard appeared
biased was based on the undisputed fact that a brief was sub-
mitted in her name in the special action proceeding.
16
Presumably because Judge Ballinger’s independent determination that
Judge Hilliard could decide Hurles’s recusal motion completely under-
mines the majority’s claim that Judge Hilliard was objectively unreason-
able in doing so, the majority tries to avoid considering the import of
Judge Ballinger’s decision. Maj. op. at 9065 n.6 (“Judge Ballinger’s deci-
sion is not the decision we are reviewing.”). This is an error: in adjudicat-
ing a habeas petitioner’s claim, a federal court should consider “the record
that was before the state court that adjudicated the claim on the merits.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Moreover, Hurles’s
recusal motion presented the same arguments and bias allegations as his
second petition for post-conviction relief and even incorporated those
arguments by reference; accordingly, Judge Ballinger’s decision was on
all fours with Judge Hilliard’s subsequent resolution of those same argu-
ments.
 HURLES v. RYAN 9099
Although Hurles belatedly (in his reply brief in the second
state post-conviction proceeding) stated that he “anticipate[d]
the need for factual development” in order “to explore the
nature of the contacts” between the Attorney General’s office
and the court, he did not indicate what facts could have been
developed that would have supported his due process claim,
or why the nature of the contacts made a difference to his
claim that Judge Hilliard appeared biased based on her partic-
ipation in the special action proceeding.17 And because his
claim focuses on apparent, rather than actual, bias, the only
salient facts are those already in the record: the fact of Judge
Hilliard’s participation in the special action and her brief’s
statements in that proceeding.

Because there is no basis to conclude that the state court’s
decision was based on an unreasonable determination of the
facts in light of the evidence, § 2254(d)(2), the majority is not
relieved of AEDPA deference under that prong of the statute.
In holding otherwise, the majority’s decision invites future
habeas petitioners to raise the baseless argument that a state
court’s legal rulings are actually unreasonable factual deter-
minations. Such an approach is directly contrary to Con-
gress’s command in § 2254(d) and blurs a critical line that
extends far beyond our habeas jurisprudence.

IV

The Supreme Court has harshly criticized our non-
compliance with AEDPA deference, not only this Term,18 but
in many past years as well.19 Here the majority once again dis-
17
If anything, the nature of those contacts would be relevant only to a
claim of actual bias, which Hurles disclaimed in his state-court papers. See
supra note 15.
18
See, e.g., Cullen, 131 S. Ct. 1388; Felkner v. Jackson, 131 S. Ct. 1305
(2011) (per curiam); Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per
curiam); Harrington v. Richter, 131 S. Ct. 770; Premo v. Moore, 131 S.
Ct. 733 (2011).
19
See, e.g., Schriro v. Smith, 546 U.S. 6, 8 (2005) (per curiam) (“[T]he
Court of Appeals exceeded its limited authority on habeas review . . . .”);
9100 HURLES v. RYAN
regards the AEDPA rules that limit a federal habeas court’s
“role and authority,” Rice v. Collins, 546 U.S. 333, 335
(2006), by claiming it is relieved of AEDPA deference due to
the state court’s “unreasonable determination of the facts,”
§ 2254(d)(2). But here the state court’s ruling was a legal one.
There are no disputed material facts, and the only question is
whether applying the Supreme Court’s objective rules to the
undisputed facts reveals a due process violation. Under
§ 2254(d)(1), the state court’s determination that there was no
such violation is not contrary to any Supreme Court prece-
dent. Because the majority’s decision invalidates a lawfully
imposed capital sentence, further frays the (increasingly
threadbare) fabric of our AEDPA and due process jurispru-
dence, and lays the groundwork for future, even more frivo-
lous habeas challenges to trial judges’ impartiality, I must
dissent.

Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam) (“[The Ninth
Circuit’s] conclusion failed to give appropriate deference to the state
court’s decision.”); Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (per
curiam) (same); Woodford v. Visciotti, 537 U.S. 19, 20 (2002) (per
curiam) (reversing Ninth Circuit’s grant of habeas relief because it “ex-
ceed[ed] the limits imposed on federal habeas review by 28 U.S.C.
§ 2254(d)”); Early v. Packer, 537 U.S. 3, 10 (2002) (per curiam) (admon-
ishing the Ninth Circuit for “repeatedly and erroneously substitut[ing]” the
phrase “ ‘failed to apply’ clearly established Supreme Court law” for “the
more demanding requirement of § 2254(d)(1): that the decision be ‘con-
trary to’ clearly established Supreme Court law” (emphases added)).