Hurles v. Ryan

A remand is appropriate when appellate counsel fails to raise all nonfrivolous issues on appeal, including inadequacy of trial or appellate counsel, and the failure results in actual prejudice; and, a failure to hold an evidentiary hearing is evidence of defective fact-finding and may provide evidence of judicial bias.

In November 1992, Richard D. Hurles stabbed a librarian thirty-seven times. The victim later died while Hurles fled from Arizona to Nevada. Hurles was charged with burglary, first-degree murder, first-degree felony murder and attempted sexual assault. After the state sought the death penalty, Hurles’s court appointed counsel moved for the appointment of co-counsel. The trial court denied the motion. Counsel petitioned for special action at the appellate level, alleging the prior denial was a violation of Hurles’s constitutional rights. Judge Hilliard, the trial judged named, filed a responsive pleading prior to an evidentiary hearing in the case against Hurles. The Arizona Court of Appeals denied Hilliard’s standing to appear. Hilliard continued to preside over Hurles’s trial and the jury found Hurles guilty on all charges. After conducting an aggravating and mitigating hearing, Hilliard sentenced Hurles to death. On appeal, the Arizona Supreme Court affirmed. In 1999, Hurles filed a petition for post-conviction review (“PCR”), which failed to raise Hurles’s inadequacy of trial and appellate counsel claims. Hilliard denied the PCR. The Arizona Supreme Court affirmed. In 2000, Hurles filed a federal habeas petition, a second PCR, and moved to recuse Hilliard. Another judge denied the motion, Hilliard denied the second PCR, and the Arizona Supreme Court affirmed. Hurles amended his habeas petition. The Ninth Circuit held that a remand is appropriate when appellate counsel fails to raise all nonfrivolous issues on appeal, including inadequacy of trial or appellate counsel, and the failure results in actual prejudice. The panel also held that failure to hold an evidentiary hearing is evidence of defective fact-finding and may provide evidence of judicial bias. AFFIRMED in part; REVERSED in part; REMANDED.