Hurles v. Ryan/ Schrio), 706 F.3d 1021 (9th Cir. 2013 )

Note: The 9th Circuit has done it again. The court took Arizona’s motion for rehearing and peitioner’s motion to remand under submission (709 F.3d 1317 (2013)  pending a ruling in Dietrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010).   Reversed in 131 S.Ct. 2449 (2011).  In Dietrich (below) the Supreme Court reversed the 9th Circuit and remanded. The panel wrote another opinion and on October 3, 2012 a rehearing en banc in Dietrich was granted. As of March,  2013 no opinion has been written in Dietrich.   

A 9th Circuit panel originally decided this case in July, 2011: 650 F.3d 1301 (9th Cir. 2011); withdrew the case and filed an amended opinion in January 2013. Eighteen months to revise an opinion originally distorting  the record.  In its amended opinion the panel tries to correct the record and is wrong again.The rationale: a death penalty case written by a two judge majority neither of whom have ever supported the death penalty.  The dissent is devastating.

Unable to find prejudice in jury selection; prosecution misconduct; Brady violation; Confrontation Clause violation; evidentiary error; improper jury instructions; error- free sentencing; or ineffective assistance of counsel, the panel could only discover trial judge bias.  Nothing in the record supports this ruling but it was the only charge the panel could find.  This case has en banc written all over it.

An Arizona state court judge tried an error free trial, and the jury convicted the defendant in the  brutal and heinous murder of an innocent victim.  The judge sentenced the defendant   to death (prior to Ring). The evidence was overwhelming, and the defendant never asserted “factual innocence.” The Arizona state court affirmed on appeal without any objection by defendant to judicial bias.  

The defendant filed a post conviction Arizona procedural rule appealing the trial judge decision not to appoint two lawyers for trial in a death penalty case.  Arizona statutes contain no such requirement.The defendant appealed this ruling, accusing the trial judge of bias, and the chief judge assigned a different judge to hold a hearing. The hearing judge found no bias.  The U.S. District Court found no bias on habeas. The defendant (appellant) appealed.

Only the 9th Circuit could find bias in a court record that consisted of the trial judge’s defense of her ruling not to appoint two defense lawyers.  No actual bias was alleged, just a possible inference despite any evidence the trial judge expressed an opinion on guilt or innocence; engaged in an inappropriate rant; or dismissed defense evidence. 

The majority panel cited Supreme Court cases requiring triers of fact to recuse themselves if a financial condition or relationship exists benefiting the judge.  Requests for recusal exist all the time, and absent evidence of the financial issue, or the judge holding someone in contempt and then sentencing them, judges decide whether to recuse themselves -as several have in the 9th Circuit.    

According to the 9th Circuit panel, the court should have held an evidentiary hearing, and not to do so violated due process.  To say this rule qualifies as a case of first impression is the most charitable characterization.

But what about AEDPA?  The 9th Circuit has found a new way around its terms.  The federal appellate court first finds the state court decision is not “reasonable,” either of law or fact, and  therefore review de novo.  This is unprecedented from the record in this case and a complete disregard of all the rules the Supreme Court has laid down, mostly in reversing the 9th Circuit.  In fact, the Supreme Court, if not the 9th Circuit, will reverse this case in a per curium decision accompanied by a verbal lashing



Schad v. Ryan, 709 F.3d 855 (9th Cir. 2013)

Incontrovertible evidence established Schad had strangled the victim breaking his neck, stealing his car, and using his ATM card to buy jewelry.  At the time of his trial, Schad was on parole for similar conduct committed in a previous case.  Convicted in the instant case in1979 and his conviction and sentence affirmed on appeal by the state court –  including denial of a claim for ineffective assistance of counsel- Schad filed a habeas petition in federal court.  Petition denied but reversed on appeal by the 9th Circuit; that decison was reversed by the Supreme Court and remanded.  Schad’s subsequent attempt to set aside the conviction again succeeded in the 9th Circuit, and again  the Supreme Court reversed, remanded and ordered the 9th Circuit to reconsider in light of Cullen v. Pinholster, 131 S.Ct. 2388 (2011).

In Cullen v. Pinholster the Supreme Court court had verbally lashed the 9th Circuit for allowing evidence in a federal habeas petition never previously presented in state court.  This 9th Circuit practice had become applicable in numerous of its criminal cases.  In most instances, the state court had committed no legal error at trial or on appeal , and the petition alleged ineffective assistance of counsel. The 9th Circuit permitted petitioners to introduce entirely new evidence on federal habeas The Supreme Court wrote Cullen to terminate this egregiously unfair practice.

After remand in Schad, the majority 2-1 panel affirmed the conviction and sentence 671 F.3d 708 (9th Cir. 2011) but later, on its own initiative, reconsidered this decision affirming the state court and the corresponding denial of habeas by the district court.  The panel justified its “reconsideration” based upon an unrelated Supreme Court case permitting a habeas court to hear and consider allegations that defense counsel failed to provide effective assistance of counsel and, as a consequence, the petitioner did not procedurally default in state court. Martinez v. Ryan,  132 S.Ct. 1309 (2012). Despite repeated comparable habeas allegations denied in state and federal courts alleging ineffective assistance of counsel, the panel considered “new evidence” to establish no procedural default had occurred.

The majority opinoin is so clearliy a brazen and deplorable evasion of the Supreme Court decison that 7 judges dissented.  Here is one of those dissenting opinions “Schad was first convicted on October 5, 1979, and sentenced to death on December 27, 1979.  Schad was convicted on retrial on June 27, 1985, and sentenced to death for a second time, by a second judge, on August 29, 1985.  Now, over 33 years after he was first convicted and after the Supreme Court denied Schad’s petition for certiorari, the panel majority has “reconsidered” its own prior decision, likely giving Schad another six years to live.For the reasons discussed by Judge Tallman, the panel majority’s legal basis is unsound and, as the district court already concluded, Schad’s ineffective assistance claim is meritless. The sole point of this exercise was to buy Schad more time—the very thing he took from [victims] Lorimer Grove and Clare Odell Mortensen. Victims have rights, too. The panel majority’s decision here cavalierly disregards those rights in favor of a twice-convicted murderer who has already had the benefit of 33 years of legal process. I respectfully dissent.”