                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD DEAN HURLES,                     No. 16-99007
          Petitioner-Appellant,
                                         D.C. No.
               v.                   2:00-cv-00118-DLR

CHARLES L. RYAN, Warden;
GEORGE HERMAN, Warden,                    OPINION
Arizona State Prison - Eyman
Complex,
         Respondents-Appellees.


      Appeal from the United States District Court
               for the District of Arizona
      Douglas L. Rayes, District Judge, Presiding

      Argued and Submitted December 10, 2018
              San Francisco, California

                Filed February 1, 2019

Before: Sidney R. Thomas, Chief Judge, and Richard A.
       Paez and N. Randy Smith, Circuit Judges.

                    Per Curiam Opinion
2                         HURLES V. RYAN

                            SUMMARY*


                          Habeas Corpus

   The panel affirmed the district court’s judgment, on
remand for an evidentiary hearing, dismissing a habeas
corpus petition.

    The panel could not say that the district court committed
clear error in its determinations, after conducting an
evidentiary hearing on remand, that there was no actual
judicial bias.

    The panel held that the petitioner’s claim of ineffective
assistance of appellate counsel is not viable in light of Davila
v. Davis, 137 S. Ct. 2058 (2017), which held that the holding
in Martinez v. Ryan, 566 U.S. 1 (2012) – that a successful
claim of post-conviction ineffective assistance of counsel
can excuse a procedurally defaulted claim of ineffective
assistance of trial counsel – does not extend to procedurally
defaulted claims of ineffective assistance of appellate
counsel. The panel wrote that because Davila is clearly
irreconcilable with this court’s prior precedent, Nguyen v.
Curry, 736 F.3d 1287 (9th Cir. 2013), Nguyen does not
control the panel’s decision, and a prior panel’s pre-Davila
decision applying Nguyen to this case does not bind this
panel.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      HURLES V. RYAN                          3

                         COUNSEL

Emily Katherine Skinner (argued) and Natman Schaye,
Associate Counsel, Arizona Capital Representation Project,
Tucson, Arizona; Denise Young, Tucson, Arizona; for
Petitioner-Appellant.

Julie Ann Done (argued), Assistant Attorney General, Capital
Litigation Section; Lacey Stover Gard, Chief Counsel; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Respondents-Appellees.


                          OPINION

PER CURIAM:

    This appeal returns to us after a prior panel remanded the
case to the district court for an evidentiary hearing. Hurles v.
Ryan, 752 F.3d 768 (9th Cir. 2014). After considering the
record, briefs, and arguments, we affirm. The factual record
in the case was thoroughly discussed in our prior opinion, so
we need not recount it here.

    Because Hurles filed his federal habeas petition in 2000,
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs. Hurles, 752 F.3d at 777. AEDPA
“bars relitigation of any claim ‘adjudicated on the merits’ in
state court, subject only to the exceptions in §§ 2254(d)(1)
and (2).” Harrington v. Richter, 562 U.S. 86, 98 (2011).
Relief should not be granted unless the state court
proceedings either “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
4                         HURLES V. RYAN

Supreme Court of the United States” or “(2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Clearly established law
is limited to the Supreme Court’s holdings at the time of the
state court decision. Williams v. Taylor, 529 U.S. 362, 412
(2000). We review de novo the district court’s dismissal of
the petition and its findings of fact for clear error. Brown v.
Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007).

     1. The prior panel remanded the issue of judicial bias for
an evidentiary hearing on risk of actual bias. The district
court conducted a thorough hearing on that issue and made
factual findings that no bias occurred. After reviewing the
record, the briefs, and considering the arguments of counsel,
we cannot say that the district court committed clear error in
its factual determinations.1

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


    1
       Pursuant to the jurisprudential doctrine of law of the case, we
decline to reconsider matters pertaining to this issue which were decided
in the prior appeal. Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir.
1997) (en banc). The only question presented in this appeal is whether the
district court’s factual findings on remand were clearly erroneous.
                          HURLES V. RYAN                                 5

ineffective assistance of trial counsel. In Nguyen, we held
that the same reasoning applied to defaulted claims of
ineffective assistance of appellate counsel. Ngyuen, 736 F.3d
at 1289.

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

    2
       See Jeffries, 114 F.3d at 1488–89 (noting that intervening
controlling authority is one of the three exceptions to the law of the case
doctrine).
     3
       We are bound by our precedent emphasizing that “only the Supreme
Court could expand the application of Martinez to other areas,” and
“further substantive expansion” of Martinez is “not . . . forthcoming.”
Pizzuto v. Ramirez, 783 F.3d 1171, 1176–77 (9th Cir. 2015) (refusing to
apply Martinez to procedurally defaulted claims of judicial bias); see also
Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (rejecting the
argument that Martinez permitted resuscitation of a procedurally defaulted
Brady claim). Even if Davila were construed to allow an exception to the
general rule under Coleman v. Thompson, 501 U.S. 722, 752–54 (1991),
6                        HURLES V. RYAN

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

    AFFIRMED.




such an exception would not apply here. Trial counsel requested funding
for a Computer Assisted Topographic Mapping scan, which was then
denied by the state court on procedural grounds. Hurles suggests that
orders denied on procedural grounds should be considered as unpreserved
trial errors within the meaning of the potential exception identified in
Davila, but Davila does not draw that distinction and there is no other
support for that proposition in Supreme Court jurisprudence. Hurles’s
interpretation would considerably broaden the “limited circumstances”
meriting Martinez’s “highly circumscribed, equitable exception.” Id. at
2066 (citing Martinez, 132 S. Ct. at 1320).
