                     FOR PUBLICATION

       UNITED STATES COURT OF APPEALS
            FOR THE NINTH CIRCUIT


 RICHARD D. HURLES,                                No. 08-99032
             Petitioner-Appellant,
                                                     D.C. No.
                     v.                         2:00-cv-0118-RCB

 CHARLES L. RYAN*,                                 ORDER AND
             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 May 16, 2014

        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).
2                         HURLES V. RYAN

                           SUMMARY**


                Habeas Corpus/Death Penalty

    The panel withdrew its opinion filed January 18, 2013;
filed a new opinion affirming in part and denying in part the
district court’s denial of a 28 U.S.C. § 2254 habeas corpus
petition challenging a capital murder conviction and death
sentence; denied the warden’s motion for ruling on her
February 1, 2013, petition for rehearing en banc; allowed the
parties to file a petition for rehearing and rehearing en banc
with respect to the new opinion; and granted in part and
denied in part the petitioner’s motion to remand.

     The petitioner, an Arizona state prisoner, moved to
remand for reconsideration of procedural default in light of
Martinez v. Ryan, 132 S.Ct. 1309 (2012). The panel granted
the motion as to appellate counsel’s failure to challenge the
trial court’s denial of neurological testing, but otherwise
denied the motion.

    The panel held that the state court reasonably denied the
petitioner’s claims that sentencing counsel failed to explain
how the petitioner’s mental illness and deficiencies affected
his conduct at the time of the crime, depriving him of the
effective assistance of counsel.

    The panel held that the state court reasonably denied the
petitioner’s claim that appellate counsel was ineffective by


  **
     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

not challenging the trial court’s failure to weigh mitigating
evidence cumulatively.

    The panel held that the state court came to an
unreasonable determination of the facts in denying the
petitioner’s claim that the trial judge’s failure to recuse
herself denied the petitioner due process of law. The panel
remanded for an evidentiary hearing on the claim of judicial
bias.

    Dissenting, Judge Ikuta wrote that the majority offers a
new way to evade AEDPA deference: make an unsupported
– and unsupportable – assertion that the state court’s fact
finding process is “unreasonable” for purposes of 28 U.S.C.
§ 2254(d)(2).


                        COUNSEL

Denise I. Young and Michael Aaron Harwin, Tucson,
Arizona, for Petitioner-Appellant.

Terry Goddard, Attorney General, Kent E. Cattani and J.D.
Nielsen, Office of the Arizona Attorney General, Capital
Litigation Section, Phoenix, Arizona, for Respondent-
Appellee.
4                      HURLES V. RYAN

                           ORDER

    The opinion filed January 18, 2013, and appearing at
706 F.3d 1021, is withdrawn, Carver v. Lehman, 558 F.3d
869, 878–79 (9th Cir. 2009), and is replaced by the opinion
filed concurrently with this order. Our prior opinion may not
be cited as precedent to any court. The parties may file a
petition for rehearing and rehearing en banc with respect to
the opinion filed together with this order.

    IT IS SO ORDERED.



                          OPINION

D.W. NELSON, Senior Circuit Judge:

    Petitioner Richard D. Hurles appeals the district court’s
denial of his federal habeas petition challenging his
conviction for capital murder and the imposition of his death
sentence. Hurles argues that the district court erred in
denying his claims of judicial bias and ineffective assistance
of sentencing and appellate counsel, and in finding various
claims procedurally defaulted. We remand for an evidentiary
hearing on Hurles’s claim of judicial bias. We also grant in
part Hurles’s motion for a remand pursuant to Martinez v.
Ryan, 132 S.Ct. 1309 (2012), and remand for consideration of
appellate counsel’s failure to challenge the trial court’s denial
of neurological testing. We otherwise affirm the district court
and deny Hurles’s motion.
                      HURLES V. RYAN                         5

I. Background

     Hurles, on parole after serving nearly fifteen years for
prior crimes, went to the library in Buckeye, Arizona on a
November afternoon in 1992. State v. Hurles, 914 P.2d 1291,
1293 (1996) (en banc). He attacked librarian Kay Blanton by
attempting to rape her and then stabbing her thirty-seven
times. Id. Hurles left the library, cleaned himself up,
discarded his bloody clothes and fled on a bus to Las Vegas,
Nevada. Id. at 1294. The state charged Hurles with burglary,
first-degree murder, first-degree felony murder and attempted
sexual assault. Id. at 1293.

    The court appointed an attorney to represent Hurles, an
indigent. That attorney moved for the appointment of co-
counsel when the State decided to seek the death penalty.
Defense counsel cited numerous reasons necessitating co-
counsel, among them, the many witnesses, the State’s
intention to utilize forensic experts, the need to maintain a
productive client relationship and the dense and detailed
preparation necessary for both phases of trial. The trial court
summarily denied the motion.

     Defense counsel brought a petition for special action in
the Arizona Court of Appeals. The petition challenged the
denial of the motion to appoint co-counsel as violating
Hurles’s rights to due process, equal protection and the
adequate assistance of counsel. The real party in interest, the
State of Arizona, declined to respond to the petition because
it lacked standing to do so. Hurles v. Superior Court, 849
P.2d 1, 2 (Ariz. Ct. App. 1993). However, the petition named
the trial judge, Ruth Hilliard, as the respondent, as required
by Arizona law. Ariz. R. P. Special Actions 2(a). This
nominal designation “is a mere formality,” and the trial judge
6                     HURLES V. RYAN

“has no interest in the litigation and should have no interest
in the way the case is decided.” State ex rel. Dean v. City
Court, 598 P.2d 1008, 1000–11 (Ariz. Ct. App. 1979).
Nonetheless, Judge Hilliard filed a responsive pleading,
months before the presentation of any evidence in the case
against Hurles, that defended her ruling below.

     In her response, Judge Hilliard described the murder as
“brutal.” She noted that defense counsel had not noticed any
defenses, had not disclosed the names of trial witnesses, had
not requested an examination of Hurles and that it was not
known whether Hurles would present a mental health expert
at trial. Judge Hilliard nevertheless described the state’s case
against Hurles as “very simple and straightforward, compared
to other capital cases” and predicted that it would not involve
an inordinate amount of witness testimony. She argued that
the denial of second counsel was rationally related to the
state’s duty to preserve its resources, noting that Hurles had
failed to show that his case was “any more complex or
difficult to prepare than almost any other criminal case.”
Judge Hilliard referenced the rules of professional conduct
and stated that if defense counsel believed that she could not
render competent representation, she was bound to withdraw
and, quite possibly, to withdraw her name from the list of
attorneys who contracted with the county to serve as
appointed counsel. Judge Hilliard concluded, “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.”

    The Arizona Court of Appeals published a decision
denying Judge Hilliard standing to appear in the special
action and ruling it improper for judges to file pleadings in
special actions solely to advocate the correctness of an
                      HURLES V. RYAN                          7

individual ruling in a single case. Hurles, 849 P.2d at 3–5.
The court noted that the presiding criminal judge, not Judge
Hilliard, requested the filing of a responsive pleading and that
there was no contact between Judge Hilliard and the Arizona
Attorney General’s office as the pleading was prepared. Id.
at 2, n.2. However, Colleen French, of the Arizona Attorney
General’s Office, represented Judge Hilliard in the special
action proceeding and later admitted to having had some
communication with Judge Hilliard about this matter. In
opposing a motion to disqualify the Arizona Attorney
General’s Office from representing the state, French
referenced her “communications with [Judge Hilliard] during
the special action proceedings” but did not describe their
nature of content. The record is ambiguous as to the nature
and extent of those communications.

    Addressing Judge Hilliard’s participation in the special
action proceeding, the court of appeals held that it was “of the
inappropriate ‘I-ruled-correctly’ sort” Hurles, 849 P.2d at 4.
The court explained that “at every level of the judiciary,
judges are presumed to recognize that they must do the best
they can, ruling by ruling, with no personal stake—and surely
no justiciable stake—in whether they are ultimately affirmed
or reversed.” Id. The court stated that “[t]his principle,
which is essential to impartial adjudication, does not change
from direct appeal to special action, merely because the judge
is a nominal respondent in the latter.” Id. The court then
held that Judge Hilliard lacked standing to file a responsive
pleading and declined to consider the pleading filed in her
name. Id.

    Judge Hilliard continued to preside over Hurles’s trial. A
jury found Hurles guilty of all charges. Judge Hilliard then
conducted an aggravation and mitigation hearing to determine
8                     HURLES V. RYAN

the appropriate sentence for Hurles. Arizona’s capital
sentencing scheme provided at the time of trial that Judge
Hilliard, sitting alone, would determine the presence or
absence of the aggravating factors required by state law for
the imposition of the death penalty. Ring v. Arizona,
536 U.S. 584, 588 (2002). The Supreme Court has since held
that capital defendants are entitled to a jury determination of
any fact that would support the imposition of a death
sentence. Id. at 589. At the aggravation and mitigation
hearing, Hurles offered substantial mitigating evidence,
including his markedly dysfunctional family background,
cognitive deficiencies, long-term substance abuse, mental
illness, good behavior while incarcerated and an expert
opinion that Hurles suffered diminished capacity at the time
of the crime.

    Following the presentation of penalty phase evidence,
Judge Hilliard found one statutory aggravating factor: that
Hurles committed the crime in an especially cruel, heinous
and depraved manner. She found two nonstatutory mitigating
circumstances: that Hurles suffered a deprived childhood in
a clearly dysfunctional home and that he behaved well in
prison prior to the underlying crime. She concluded that
these circumstances did not warrant leniency and condemned
Hurles to die. The Arizona Supreme Court affirmed Hurles’s
conviction and sentence on appeal. Hurles, 914 P.2d at 1300.

    Hurles filed his first petition for post-conviction review
(“PCR”) in 1999. Judge Hilliard presided over this PCR.
French, the same attorney who represented Judge Hilliard in
the prior special action proceeding, represented the state.
Judge Hilliard denied the PCR, and the Arizona Supreme
Court summarily affirmed.
                       HURLES V. RYAN                          9

    Hurles commenced federal habeas proceedings in 2000.
He then returned to state court to file a second PCR raising
additional claims, including one of judicial bias. Hurles
moved to recuse Judge Hilliard from presiding over his
second PCR. The motion was referred to another judge and
denied. Judge Hilliard then denied Hurles’s second PCR, and
the Arizona Supreme Court summarily affirmed.

    Hurles returned to federal court and filed an amended
habeas petition, raising ten claims. The district court denied
most of them as procedurally barred. After additional
briefing, the district court denied the remainder of Hurles’s
claims on the merits and certified four issues for appeal to
this Court.

II. Jurisdiction and Standard of Review

    We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo the district court’s denial of Hurles’s habeas
petition, and we review the district court’s findings of fact for
clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.
2007). We review for abuse of discretion the determination
that a petitioner is not entitled to an evidentiary hearing.
Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).
Because Hurles filed his federal habeas petition after 1996,
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs this case. Lindh v. Murphy, 521 U.S.
320, 336 (1997).

   AEDPA places limitations on a federal court’s power to
grant a state prisoner’s federal habeas petition. Cullen v.
Pinholster, 131 S.Ct. 1388, 1398 (2011). When a state court
has adjudicated a claim on the merits, we may grant relief
only if the adjudication of that claim “(1) resulted in a
10                     HURLES V. RYAN

decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined
by the Supreme Court of the United States, or (2) resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the state
court proceeding.” 28 U.S.C. § 2254(d). To determine the
relevant clearly established federal law, we look to the
holdings, but not the dicta, of the Supreme Court at the time
the state court adjudicated the claim on the merits. Terry
Williams v. Taylor, 529 U.S. 362, 412 (2000). In considering
whether the state court unreasonably applied clearly
established federal law, we are limited to the record before
the state court that adjudicated the claim on the merits.
Pinholster, 131 S.Ct. at 1398).

    An unreasonable application of federal law results where
the “the state court identifies the correct governing legal rule
from [Supreme Court] cases but unreasonably applies it to the
facts of the particular state prisoner’s case,” or if it “either
unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply.” Williams, 529 U.S. at 407; see also
Panetti v. Quarterman, 551 U.S. 930, 953 (holding that
AEDPA does not require habeas courts to await “some nearly
identical factual pattern” before applying a clearly established
rule, nor does it prohibit “finding an application of a principle
unreasonable when it involves a set of facts different from
those of the case in which the principle was announced”)
(internal quotation marks and citations omitted). We cannot
grant relief unless the state court came to a decision that was
objectively unreasonable. Williams, 529 U.S. at 410.
                       HURLES V. RYAN                        11

    We cannot find that the state court made an unreasonable
determination of the facts in this case simply because we
would reverse in similar circumstances if this case came
before us on direct appeal. Taylor v. Maddox, 366 F.3d 992,
1000 (9th Cir. 2004). Instead, we must be “convinced that an
appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is
supported by the record” before the state court. Id. To find
the state court’s fact finding process defective in a material
way, or, perhaps, completely lacking, “we must more than
merely doubt whether the process operated properly. Rather,
we must be satisfied that any appellate court to whom the
defect is pointed out would be unreasonable in holding that
the state court’s fact-finding process was adequate.” Id.

    If we determine, considering only the evidence before the
state court, that the adjudication of a claim on the merits
resulted in a decision contrary to or involving an
unreasonable application of clearly established federal law, or
that the state court’s decision was based on an unreasonable
determination of the facts, we evaluate the claim de novo, and
we may consider evidence properly presented for the first
time in federal court. Pinholster, 131 S.Ct. at 1401.

III.      Discussion

       A. Ineffective Assistance of Counsel

    Hurles brought various claims of ineffective assistance of
counsel (“IAC”) in his federal habeas petition, all of which
the district court either dismissed as procedurally defaulted or
denied on the merits.
12                     HURLES V. RYAN

    To bring a successful IAC claim, Hurles must show
counsel’s deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984).                    Deficient
performance requires a showing that trial counsel’s
representation fell below an objective standard of
reasonableness as measured by prevailing professional norms.
Wiggins v. Smith, 539 U.S. 510, 521 (2003). “A court
considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance.”
Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (quoting
Strickland, 466 U.S. at 689). Hurles bears the burden of
showing “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U.S. at 687. To
establish prejudice, Hurles must show a reasonable
probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. “It is not enough
‘to show that the errors had some conceivable effect on the
outcome of the proceeding.’ Counsel’s errors must be ‘so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.’” Richter, 131 S.Ct. at 787–88 (quoting
Strickland, 466 U.S. at 693, 687).

    “The standards created by Strickland and [AEDPA] are
both highly deferential, and when the two apply in tandem,
review is doubly so.” Richter, 131 S.Ct. at 788 (internal
quotation marks and citations omitted). In considering the
state court’s denial of Hurles’s IAC claims, “[t]he pivotal
question is whether the state court’s application of the
Strickland standard was unreasonable.” Id. at 785. We do
not ask, in the first instance, whether counsel’s performance
                       HURLES V. RYAN                         13

fell below Strickland’s standard because “‘an unreasonable
application of federal law is different from an incorrect
application of federal law.’” Id. (quoting Williams, 529 U.S.
at 410). We must “guard against the danger of equating
unreasonableness under Strickland with unreasonableness
under [AEDPA] . . . . The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 788. We are mindful that a
“state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Id.
at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).

        1. Procedurally Defaulted IAC Claims

    The warden contends that Hurles procedurally defaulted
five of his IAC claims. Hurles moves to remand for
reconsideration of procedural default in light of Martinez v.
Ryan, 132 S.Ct. 1309 (2012). We grant the motion as to
appellate counsel’s failure to challenge the trial court’s denial
of neurological testing, and we remand on that basis. We
otherwise deny Hurles’s motion.

    The relevant claims include trial counsel’s failure to
locate a key guilt phase witness and appellate counsel’s
failure to raise (1) the denial of a request for neurological
testing, (2) the consideration of improper victim statements,
(3) that, generally, Arizona’ death penalty statute fails to
narrow the class of death-eligible defendants and (4) that,
specifically, Arizona’s F(6) statutory aggravating factor fails
to narrow the class of death-eligible defendants.
14                    HURLES V. RYAN

     Hurles procedurally defaulted these claims when he failed
to raise them before the Arizona Supreme Court. See Zichko
v. Idaho, 247 F.3d 1015, 1021–22 (9th Cir. 2001) (“A habeas
petitioner must present his claims to the highest state court in
order to satisfy the exhaustion requirement of [AEDPA].”).
“[T]he procedural default rule barring consideration of a
federal claim ‘applies . . . if it is clear that the state court
would hold the claim procedurally barred.’” Franklin v.
Johnson, 290 F.3d 1223, 1230–31 (9th Cir. 2002) (quoting
Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)). If Hurles
presented these IAC claims to the Arizona Supreme Court
now, the court would dismiss them as waived. Ariz. R. Crim.
P. 32.2 (waiver with narrow exceptions not applicable here).
Thus, Hurles’s failure to present these claims to the state
supreme court “‘in a timely fashion has resulted in a
procedural default of those claims.’” Zichko, 247 F.3d at
1022 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999)); see also Coleman v. Thompson, 501 U.S. 722, 732
(1991), overruled on other grounds by Martinez v. Ryan,
132 S.Ct. 1309, 1315 (2012) (holding petitioner “defaulted
his federal claims in state court,” so, met “technical
requirements for exhaustion” because “no state remedies
[were] available to him”) (internal quotation marks and
citations omitted).

    For the procedural default rule to apply, “the application
of the state procedural rule must provide an adequate and
independent state law basis on which the state court can deny
relief.” Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003)
(amended) (internal quotation marks and citations omitted).
Arizona’s waiver rules are independent and adequate bases
for denying relief. Stewart v. Smith, 536 U.S. 856, 859–60
(2002) (per curiam) (holding denials pursuant to Arizona
waiver rules are independent of federal law); Ortiz v. Stewart,
                      HURLES V. RYAN                        15

149 F.3d 923, 931–32 (9th Cir. 1998) (finding Arizona
waiver rule consistently and regularly applied).

    Now that we have found “an independent and adequate
state procedural ground, ‘federal habeas review is barred
unless [Hurles] can demonstrate cause for the procedural
default and actual prejudice, or [can] demonstrate that the
failure to consider the claims will result in a fundamental
miscarriage of justice.’” Bennett, 322 F.3d at 580 (quoting
Noltie v. Peterson, 9 F.3d 802, 804–05 (9th Cir. 1993)).

    In our amended opinion filed on January 18, 2013, we
affirmed the district court’s holding of procedural default as
to these claims. After we filed our amended opinion,
however, Hurles moved to remand pursuant to Martinez v.
Ryan, 132 S.Ct. 1309, an intervening Supreme Court
decision. Martinez held that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of
ineffective assistance of counsel at trial.” 132 S.Ct. at 1315.
In his motion to remand, Hurles argues that this very
circumstance exists here: The ineffectiveness of counsel at
his post-conviction proceedings caused Hurles to default
substantial claims of ineffective assistance of trial and
appellate counsel. Thus, he argues, the Martinez exception to
procedural default applies, and we should remand for further
proceedings as to that issue. We took that motion under
submission pending the resolution of Detrich v. Ryan, — F.3d
—, 2013 WL 4712729, (9th Cir. Sep. 3, 2013) (en banc).

    In Detrich, the district court held several of the
petitioner’s claims of ineffective assistance of trial counsel
procedurally defaulted because, like Hurles, Detrich failed to
raise those claims during his initial state post-conviction
16                    HURLES V. RYAN

relief proceedings. Id. at *1. Sitting en banc, we remanded
to the district court pursuant to Martinez to determine
whether cause existed to excuse post-conviction counsel’s
procedural default. Id. at *9. Detrich confirmed that a
remand is appropriate where post-conviction counsel’s failure
to raise a claim of ineffective assistance of trial counsel may
have caused the procedural default of that claim. It did not
speak, however, to the question here, which is whether
remand is appropriate where the defaulted claim alleges the
ineffective assistance of appellate counsel.

     Nonetheless, we recently decided Nguyen v. Curry,
— F.3d —, 2013 WL 6246285 (9th Cir. Dec. 4, 2013), which
addresses this very question. In Nguyen, we held that
“Martinez applies to the failure to raise not only a claim of
trial-counsel IAC, but also a claim of appellate-counsel IAC.”
Id. at *1 (emphasis added).” The Nguyen Court thus
remanded for “the district court to determine in the first
instance whether [the petitioner’s] procedural default should
be excused under Martinez.” Id.

    To establish cause for the procedural default of an IAC
claim, Hurles must show that post-conviction counsel was
ineffective pursuant to Strickland v. Washington, 466 U.S.
668 (1984), in not raising a particular claim. Martinez, 132
S.Ct. at 1318. Specifically, Hurles must demonstrate
counsel’s performance was deficient and that this deficient
performance prejudiced the defense. Strickland, 466 U.S. at
687. Hurles also must show that the underlying IAC claim is
“substantial,” meaning that it “has some merit.” Martinez,
132 S.Ct. at 1318. We discuss each claim in turn to consider
whether Hurles has established cause to excuse the default of
his IAC claims.
                      HURLES V. RYAN                         17

    First, Hurles claims that trial counsel failed to conduct an
adequate guilt phase investigation. Trial counsel never
disputed that Hurles caused the victim’s death but argued that
Hurles was M’Naughton insane at the time of the crime.
Ariz. Rev. Stat. 13-502(A) (1993) (“A person may be found
guilty except insane if at the time of the commission of the
criminal act the person was afflicted with a mental disease or
defect of such severity that the person did not know the
criminal act was wrong.”); see also Clark v. Arizona,
548 U.S. 735, 748–56 (2006) (upholding as constitutional the
1993 amendments to Arizona’s insanity law in effect at the
time of Hurles’s trial).

    To establish this defense, trial counsel presented expert
testimony that Hurles was in a psychotic state of mind at the
time of the murder due to brain damage, and so did not know
what he was doing or that it was wrong. Hurles also alleges,
however, that hours before the murder, he had consensual sex
with a woman who was not the victim. Trial counsel did not
identify, locate or question this woman.

    Certainly, we have held that counsel must conduct an
adequate investigation to prepare a mental health defense in
a capital case. See, e.g., Bloom v. Calderon, 132 F.3d 1267,
1277–78 (9th Cir. 1997). Adequate counsel would have
tracked down this witness, as she was the last person to have
intimate or substantial contact with Hurles close in time to the
crime. Conceivably, she could have provided crucial insight
into his behavior and mental state just hours before the
murder, which would relate to his insanity defense at the guilt
phase. This testimony also might have proved helpful at the
sentencing phase of trial. See Ariz. Rev. Stat. § 13-703
(G)(1) (1991) (listing as a mitigating factor “[t]he defendant’s
capacity to appreciate the wrongfulness of his conduct or to
18                    HURLES V. RYAN

conform his conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a
defense to prosecution.”). Counsel’s failure to investigate
and locate this witness appears deficient. See, e.g., Silva v.
Woodford, 279 F.3d 825, 842 (9th Cir. 2002) (“[A]n
attorney’s failure to investigate, during either the guilt phase
or the sentencing phase of a capital trial, can amount to
constitutionally deficient performance.”).

    Though counsel’s performance likely proved deficient,
Hurles has not established prejudice. To do so, Hurles must
show a reasonable probability that but for counsel’s failure to
track down the witness, the result of the guilt phase would
have been different. See Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Federal post-conviction
counsel sought and obtained funding for an investigator to
locate this witness. There is nothing in the record to suggest
that she has been found, and we can only speculate as to the
nature of her testimony and whether it would have helped or
undermined Hurles’s insanity defense. Thus, Hurles’s “claim
of prejudice amounts to mere speculation,” Cooks v.
Spalding, 660 F.2d 738, 740 (9th Cir. 1981), and he has not
established cause to excuse the procedural default of this
claim.

    Additionally, Hurles makes several claims of ineffective
assistance of appellate counsel. The first is that appellate
counsel failed to challenge the trial court’s denial of Hurles’s
request for neurological testing to support his insanity
defense—his only defense at trial. Hurles contends that the
denial of funds violated his due process rights pursuant to Ake
v. Oklahoma, 470 U.S. 68 (1985).
                       HURLES V. RYAN                           19

    Hurles retained Dr. Marc. S. Walter as an expert at trial.
Dr. Walter opined that based on a neuropsychological exam,
Hurles suffered from physiological brain damage and
recommended a Computer-assisted Topographic Mapping
(“CTM”) test to substantiate his opinion. The state’s expert,
psychiatrist Dr. Alexander Don, agreed that to verify brain
impairment, Hurles would need to undergo “some objective
neurological investigation, like a CTM scan.”

    Trial counsel requested funds for a CTM examination.
The trial court denied this request. At trial, the prosecutor
cross-examined Dr. Walter, asking what tests would verify
brain damage and whether those tests had been conducted.
Dr. Walter testified that the relevant tests that would show
brain damage had not been conducted. The state’s expert
then testified that “there would need to be further studies” to
confirm brain damage and that “if [a] practitioner suspects
brain injury, then it ought to be able to be demonstrated
objectively on testing.” After the guilt phase ended but
before the sentencing hearing, the trial court approved funds
for a brain scan. Dr. Drake Duane conducted the CMT and
found an “abnormality in the left frontal region” that is
associated with “processing difficulty.”

    In Ake, the Supreme Court held that “when a State brings
its judicial power to bear on an indigent defendant in a
criminal proceeding, it must take steps to assure that the
defendant has a fair opportunity to present his defense.”
470 U.S. at 76. The Court held that “when a defendant
demonstrates to the trial judge that his sanity at the time of
the offense is to be a significant factor at trial, the State must,
at a minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and
assist in the evaluation, preparation, and presentation of the
20                     HURLES V. RYAN

defense.” Id. at 83. Hurles’s sanity was not just a significant
factor at trial—it was his entire defense at the guilt phase.
This case is not like Vickers v. Stewart, where the petitioner
sought out-of-state testing that would have taken several
weeks where nearly “every . . . expert who provided evidence
in the case[] agreed that no amount of testing could establish
whether [the petitioner] had in fact suffered a seizure at the
time of the offense”—the key to establishing the insanity
defense. 144 F.3d 613, 615–16 (9th Cir. 1998). Nor did
Hurles seek the appointment of a third psychiatrist as did the
petitioner in Leavitt v. Arave, 646 F.3d 605, 610 (9th Cir.
2011).

    Here, the sole defense at guilt was insanity, and Hurles’s
expert offered testimony in support of that defense. The state
offered a contrary opinion, resulting in a battle of the experts.
Both experts agreed that objective testing could show brain
damage, but the trial court denied funding for this test until
after the guilt phase concluded. The state used the absence of
such an objective test to its advantage, tipping the scales of
the battle of the experts in its favor.

    Appellate counsel’s failure to raise this claim on appeal
was deficient. Appellate counsel “unreasonably failed to
discover nonfrivolous issues” to appeal, and Hurles’s Ake
claim was “clearly stronger than those presented” on appeal.
Smith v. Robbins, 528 U.S. 259, 285, 288 (2000) (internal
quotation marks omitted). Hurles also can show prejudice
from this error, as the brain scan conducted after trial showed
brain damage. The Supreme Court held in Martinez that
“[a]llowing a federal habeas court to hear a claim of
ineffective assistance of [appellate] counsel when an
attorney’s errors . . . caused a procedural default in an intial-
review collateral proceeding acknowledges, as an equitable
                      HURLES V. RYAN                        21

matter, that the initial-review collateral proceeding, if
undertaken . . .with ineffective counsel, may not have been
sufficient to ensure that proper consideration was given to a
substantial claim.” Martinez, 132 S.Ct. at 1318. We find
cause sufficient to excuse the procedural default of Hurles’s
Ake claim and remand.

     Hurles also contends that appellate counsel performed
inadequately by failing to challenge the trial court’s
consideration of improper victim impact evidence. The trial
court considered the presentence report, which included a
statement from the victim’s husband that the “death penalty
is the only viable option” and that the “death penalty will not
change things but the punishment fits the crime.” The report
also included the homicide detective’s opinion that the “death
penalty is the appropriate sentence.” The victim’s family also
made live statements before the trial court. The victim’s
husband stated that “the only sentence that’s commensurate
with the crime . . . is the death penalty.” The victim’s
daughter acknowledged that the court could not inflict on
Hurles “the amount of violence and horrendous way that [her]
mom died” but that the court could make sure no other family
had to go through what hers had. Hurles argues that this
evidence violated his Eighth Amendment rights pursuant to
Booth v. Maryland, 482 U.S. 496 (1987) and Payne v.
Tennessee, 501 U.S. 808 (1991).

    Hurles has not demonstrated that he was denied the
adequate assistance of counsel on appeal. We have held that
even where victim impact statements “‘serve no other
purpose than to inflame the jury and divert it from deciding
the case on the relevant evidence concerning the crime and
the defendant,’” that worry falls away when a judge, rather
than a jury, sentences a defendant to death. Rhoades v.
22                     HURLES V. RYAN

Henry, 638 F.3d 1027, 1055 (9th Cir. 2010) (quoting Booth,
482 U.S. at 508); see also Gulbrandson v. Ryan, 738 F.3d
967, 996 (9th Cir. 2013) (“[C]ourts must assume that the trial
judge properly applied the law and considered only the
evidence he knew to be admissible.”) (internal quotation
marks and citation omitted); State v. Roscoe, 910 P.2d 635,
653 (Ariz. 1996) (holding evidence focusing on the impact of
a capital crime on the victim’s family is relevant).

    Finally, we see no reason to remand Hurles’s claims that
appellate counsel failed to raise constitutional challenges to
Arizona’s death penalty statute. Hurles argues that the statute
generally fails to narrow the class of defendants subject to the
death penalty, as does the “especially cruel, heinous or
depraved” aggravating factor included in the statute. The
district court found these claims unexhausted and
procedurally defaulted but addressed them on the merits
anyway and denied them in a reasoned decision. Because a
court has reviewed Hurles’s claims challenging the
constitutionality of Arizona’s death penalty statute, we deny
his motion as to these claims. Cf. Martinez, 132 S.Ct. at 1316
(noting that “if counsel’s errors in an initial-review collateral
proceeding do not establish cause to excuse the procedural
default in a federal habeas proceeding, no court will review
the prisoner’s claims”). We remand for consideration by
the district court in the first instance Hurles’s claim that
appellate counsel failed to raise the Ake claim on appeal. The
district court should afford Hurles an evidentiary hearing on
this issue if one is warranted and shall enter a new judgment
on the remanded claim.
                      HURLES V. RYAN                       23

       2. Sentencing Counsel

    Hurles claims that sentencing counsel failed to explain
how Hurles’s mental illness and deficiencies affected his
conduct at the time of the crime, depriving him of the
effective assistance of counsel. The state court reasonably
denied this claim.

   As discussed, to bring a successful IAC claim, Hurles
must show deficiency and prejudice. Strickland, 466 U.S. at
687.

    Hurles contends that trial counsel failed to draw a causal
nexus between his mental health problems and his conduct at
the time of the crime, thus, the mental health evidence
presented at sentencing proved worthless. State v. Wallace,
773 P.2d 983 (Ariz. 1989) (en banc) (“A difficult family
background is a relevant mitigating circumstance if a
defendant can show that something in that background had an
effect or impact on his behavior that was beyond the
defendant’s control.”); see also State v. Greene, 967 P.2d
106, 117 (Ariz. 1998) (en banc) (“This court has held that
family background may be a substantial mitigating
circumstance when it is shown to have some connection with
the defendant’s offense-related conduct.”) (internal quotation
marks and citations omitted).

    Counsel did not perform deficiently. First, Supreme
Court precedent existing at the time of trial did not require
showing a causal nexus between mitigating evidence and the
crime. In fact, the Supreme Court had held that “the
sentencer in capital cases must be permitted to consider any
relevant mitigating factor.” Eddings v. Oklahoma, 455 U.S.
104, 112 (1982) (emphasis added) (explaining Lockett v.
24                    HURLES V. RYAN

Ohio, 438 U.S. 586 (1978) (plurality)); see also Lockett,
438 U.S. at 604 (“[T]he Eighth and Fourteenth Amendments
require that the sentencer . . . not be precluded from
considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a
sentence less than death.”). Therefore, counsel did not
perform below the objective standard of care when she did
not establish a causal nexus between Hurles’s mental
conditions and the crime.

    Moreover, counsel conducted a rather thorough penalty
phase investigation and presented voluminous mitigating
evidence. She called four witnesses to testify to Hurles’s
dysfunctional family background, mental and psychological
disabilities and good behavior while incarcerated before the
underlying crime. She commissioned a detailed social history
that catalogued Hurles’s maladjusted family circumstances
and deprived life, and that contained affidavits from family
members and others who knew Hurles. In her briefing before
the trial court, defense counsel highlighted Hurles’s
intoxication at the time of the crime. Trial counsel also
adeptly cross-examined the state’s psychiatrist.

    On this record, we cannot say that counsel’s efforts fell
short of what the Constitution requires. Porter v. McCollum,
130 S.Ct. 447, 453 (2009) (finding counsel’s failure to
investigate and present mitigating evidence, which did not
reflect reasonable professional judgment, deficient and
prejudicial); Rompilla v. Beard, 545 U.S. 374, 390 (2005)
(finding deficient and prejudicial counsels’ failure to examine
court file relating to petitioner’s prior conviction); Wiggins,
539 U.S. at 532, 538 (granting petition where counsel
conducted unreasonably insufficient mitigation investigation
                      HURLES V. RYAN                        25

that fell short of prevailing professional standards); see also
Wong v. Belmontes, 130 S.Ct. 383, 385 (2009) (per curiam)
(denying IAC claim where counsel “understood the gravity of
th[e] aggravating evidence” and “built his mitigation strategy
around the overriding need to exclude it). The state court
reasonably denied this claim.

       3. Appellate Counsel

    Hurles alleges that appellate counsel denied him the
effective assistance of counsel by not challenging the trial
court’s failure to weigh the mitigating evidence cumulatively.
The state court reasonably denied this claim.

    A criminal defendant enjoys the right to the effective
assistance of counsel on appeal. Evitts v. Lucey, 469 U.S.
387, 391–97 (1985). We consider claims of ineffective
assistance of appellate counsel according to the standard set
forth in Strickland, 466 U.S. 668. Miller v. Keeney, 882 F.2d
1428, 1433–34 (9th Cir. 1989). Hurles must show that
appellate counsel’s representation fell below an objective
standard of reasonableness, and that, but for counsel’s errors,
a reasonable probability exists that he would have prevailed
on appeal. Id. at 1434.

    The trial judge found beyond a reasonable doubt that
Hurles committed the crime in an especially heinous, cruel
and depraved manner, a statutory aggravating factor. As to
cruelty, the court found that the victim remained conscious
while being stabbed thirty-seven times: she attempted to
reach a phone to call for help and responded to paramedics
who treated her at the scene. She also suffered fifteen
defensive stab wounds struggling to protect herself. The
court also found that Hurles inflicted gratuitous violence on
26                    HURLES V. RYAN

the victim, establishing that he committed the murder in a
heinous or depraved manner. In addition to the fifteen
defensive wounds, the victim suffered eight stab wounds to
her head and neck, twelve to her torso and two to her legs. Of
the thirty-seven wounds, three could have been fatal; the
victim bled to death. The court concluded that the attack
“had to have been mind-numbing and terrifying and
excruciatingly painful” for the victim and that Hurles
committed the murder in an especially heinous, cruel and
depraved manner.

     The trial court also considered the evidence in mitigation.
The court found that Hurles did not establish statutory factor
(G)(1), A.R.S. § 13-703(G)(1), which concerns diminished
capacity, or the ability to appreciate the wrongfulness of
one’s conduct or to conform one’s conduct to the
requirements of law. While the court found that Hurles is
“borderline mentally retarded” and has a learning disorder, he
still understood the consequences of his actions and attempted
to cover his tracks to evade detection. The trial court
accepted evidence that Hurles had been drinking before the
crime but found it insufficient to establish incapacity due to
intoxication.

    The court found that Hurles had proved, by a
preponderance of the evidence, two nonstatutory mitigating
circumstances:

           Number one, the defendant had a
       deprived childhood and was raised in a
       clearly dysfunctional home environment.
       Defendant’s father was abusive to defendant
       and to his siblings, molested his daughter, had
       sex with his son’s girlfriend. Defendant’s
                      HURLES V. RYAN                         27

       brothers were in trouble with the law
       frequently throughout defendant’s life and
       may have abused alcohol throughout their
       lives.

           Number two, the defendant had good
       behavior while incarcerated prior to the
       commission of this crime.             While
       incarcerated[,] defendant attended available
       counseling sessions and performed well in his
       work as a cook in the prison kitchen.

The court then noted that it had considered other factors
Hurles had raised in his briefing, including his low
intelligence and lack of education, as well as his inadequate
mental health treatment while incarcerated. The court did not
find those factors mitigating. The trial court concluded that
Hurles had not shown that any of the proven mitigating
circumstances were sufficiently substantial to warrant
leniency and imposed a sentence of death.

    Hurles contends that the trial court considered evidence
of his mental deficiencies and intoxication for the limited
purpose of determining whether he suffered from diminished
capacity at the time of the crime. He argues that the trial
court failed, in the final analysis, to consider evidence of his
mental deficiencies and intoxication cumulatively with the
other mitigating evidence. Hurles claims that counsel erred
in failing to raise this issue on appeal.

    Counsel did not raise any sentencing issues on appeal,
which the Arizona Supreme Court noted. Hurles, 914 P.2d at
1299. Even so, the state supreme court conducted “a
thorough and independent review of the record and of the
28                   HURLES V. RYAN

aggravating and mitigating evidence to determine whether the
sentence [wa]s justified.” Id. (quoting State v. Brewer,
826 P.2d 783, 797 (Ariz. 1992)). The court summarized the
trial court’s findings regarding the mitigating evidence and
stated:

           A difficult family background, including
       childhood abuse, does not necessarily have
       substantial mitigating weight absent a
       showing that it significantly affected or
       impacted a defendant’s ability to perceive, to
       comprehend, or to control his actions. No
       such evidence was offered, and the trial judge
       did not err in concluding that Hurles’s family
       background was not sufficiently mitigating to
       require a life sentence.

           The judge also found that Hurles had good
       behavior while incarcerated prior to
       committing the murder. Taken either by itself
       or in combination with Hurles’s family
       background, we do not believe this
       sufficiently mitigates the quality of the
       aggravating circumstance. A life sentence
       would not be more appropriate.

Id. at 1299–1300 (citation omitted).

    The state court denied Hurles’s claim of ineffective
assistance of appellate counsel, which he raised in his first
PCR. The court reasoned that Hurles had not met the
Strickland standard, that the state supreme court
independently reviewed the sentence and that the outcome on
                       HURLES V. RYAN                          29

appeal would not have been different if Hurles had presented
this claim explicitly. First PCR at 3.

    We must consider whether this denial of Hurles’s claim
of ineffective assistance of appellate counsel qualifies as
objectively unreasonable. In order for us to grant the petition,
Hurles must show that the state court’s denial of this claim
“was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 131 S.Ct.
at 786–87. Hurles has not made such a showing. Even if we
presume deficiency, we find prejudice wanting. Strickland,
466 U.S. at 697 (holding a court deciding an IAC claim need
not address both components of the inquiry if the defendant
makes an insufficient showing on one). Hurles has not shown
that, but for appellate counsel’s failure to raise this claim, the
state court would have invalidated his death sentence. Miller,
882 F.2d at 1434.

    The Constitution requires a sentencer to consider any and
all mitigation evidence offered by a defendant at trial.
Lockett, 438 U.S. at 604. This mandate requires the
consideration of nonstatutory mitigating evidence in order to
safeguard individualized decisions that are essential in capital
cases and that give due respect to the uniqueness of the
individual defendant. Id. at 605. Moreover, “[j]ust as the
State may not . . . preclude the sentencer from considering
any mitigating factor, neither may the sentencer refuse to
consider, as a matter of law, any relevant mitigating
evidence.” Eddings, 455 U.S. at 113–14. In considering
mitigating evidence, however, the sentencer “may determine
the weight to be given relevant mitigating evidence.” Id. at
114–15.
30                    HURLES V. RYAN

    Arizona law in existence at the time of trial required
sentencing courts to consider all mitigating evidence, even if
it did not establish a statutory mitigating factor. State v.
McMurtrey, 664 P.2d 637, 646 (Ariz. 1983) (en banc). In
addition, the Arizona Supreme Court specifically directed
sentencing courts to consider each mitigating circumstance,
whether or not enumerated by statute, both individually and
cumulatively. State v. Gallegos, 870 P.2d 1097, 1118–19
(Ariz. 1994). Also at the time, the Arizona Supreme Court
would conduct a de novo review of the trial court’s rulings
concerning aggravation and mitigation to decide,
independently, whether the death sentence should stand.
Brewer, 826 P.2d at 790–91.

    Had counsel presented a claim to the Arizona Supreme
Court that the trial court failed to consider the cumulative
weight of the mitigating evidence presented, we see no
probability that Hurles would have prevailed. At sentencing,
the trial court stated on the record that it had considered
nonstatutory mitigating circumstances, “including any aspect
of [Hurles’s] character, propensities or record” that might call
for leniency. The court also noted that it had considered
Hurles’s sentencing memorandum, the testimony presented
both at trial and the sentencing hearing and the arguments of
counsel. In addition to Hurles’s deprived upbringing and
good behavior while incarcerated, the trial court noted it had
considered Hurles’s low intelligence, lack of education and
inadequate mental health treatment while incarcerated.

    While the mitigating evidence may have moved us to
mercy had we presided over Hurles’s sentencing trial, such a
determination is not appropriate on habeas review. Richter,
131 S.Ct. at 786 (holding a reviewing court must not treat the
unreasonableness question as a test of its confidence in the
                       HURLES V. RYAN                        31

result it would reach under de novo review). Instead, we
must ask whether reason supports the state court’s conclusion
that counsel rendered effective assistance to Hurles, despite
not raising this claim on appeal. We find no error in that
determination. The record makes plain that the trial court did
in fact consider the mitigating evidence offered, as the
Constitution requires. Parker v. Dugger, 498 U.S. 308, 314
(1991) (“We must assume the trial judge considered all this
evidence before passing sentence. For one thing, he said he
did.”). The Arizona Supreme Court’s independent review of
the death sentence imposed here also persuades us that Hurles
did not suffer an error requiring federal habeas intervention.
Hurles, 914 P.2d at 1299–1300. While AEDPA “stops short
of imposing a complete bar on federal court relitigation of
claims already rejected in state court proceedings . . . [i]t
preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court decision conflicts with [the Supreme Court’s]
precedents.” Richter, 131 S.Ct. at 786. Such a conflict does
not exist here. The state court did not err in denying this
claim.

    B. Judicial Bias

    Hurles contends that Judge Hilliard’s failure to recuse
herself from his trial, sentencing and post-conviction
proceedings denied him due process of law. The state court
came to an unreasonable determination of the facts in denying
this claim. Accordingly, we remand for an evidentiary
hearing.

    The Supreme Court held long ago that a “fair trial in a fair
tribunal is a basic requirement of due process.” In re
Murchison, 349 U.S. 133, 136 (1955). “Fairness of course
32                        HURLES V. RYAN

requires an absence of actual bias in the trial of cases. But
our system of law has always endeavored to prevent even the
probability of unfairness.” Id.; cf. Mistretta v. United States,
488 U.S. 361, 407 (1989) (“The legitimacy of the Judicial
Branch ultimately depends on its reputation for impartiality
and nonpartisanship.”). This most basic tenet of our judicial
system helps to ensure both the litigants’ and the public’s
confidence that each case has been adjudicated fairly by a
neutral and detached arbiter.

    “The Due Process Clause of the Fourteenth Amendment
establishes a constitutional floor, not a uniform standard,” for
a judicial bias claim. Bracy v. Gramley, 520 U.S. 899, 904
(1997). While most claims of judicial bias are resolved “by
common law, statute, or the professional standards of the
bench and bar,” the “floor established by the Due Process
Clause clearly requires a ‘fair trial in a fair tribunal’ before a
judge with no actual bias against the defendant or interest in
the outcome of his particular case.” Id. at 904–05 (quoting
Withrow v. Larkin, 421 U.S. 35, 46 (1975)). The Constitution
requires recusal where “the probability of actual bias on the
part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Withrow, 421 U.S. at 47. Our
inquiry is objective. Caperton v. A.T. Massey Coal Co., 556
U.S. 868, 881 (2009).1 We do not ask whether Judge Hilliard
actually harbored subjective bias. Id. Rather, we ask whether

  1
    We cite to Caperton, the Supreme Court’s recent decision regarding
judicial bias, throughout this opinion. Caperton is not controlling insofar
as it announces new clearly established Supreme Court precedent that
post-dates the state court decision at issue here, although we do not read
Caperton to announce a new rule of law that affects our analysis. We
refer to Caperton, however, where we find its analysis of previously
established Supreme Court jurisprudence helpful to our resolution of this
matter.
                      HURLES V. RYAN                        33

the average judge in her position was likely to be neutral or
whether there existed an unconstitutional potential for bias.
Id. “Every procedure which would offer a possible
temptation to the average . . . 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 [accused] due process of
law.” Tumey v. Ohio, 273 U.S. 510, 532 (1927).

    Hurles need not prove actual bias to establish a due
process violation, just an intolerable risk of bias. Aetna Life
Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986); see also
Caperton, 556 U.S. at 883 (“[T]he Due Process Clause has
been implemented by objective standards that do not require
proof of actual bias.”) (citing Lavoie, 475 U.S. at 825;
Mayberry v. Pennsylvania, 400 U.S. at 455, 465–66 (1971);
Tumey, 273 U.S. at 532). Thus, we must ask “whether ‘under
a realistic appraisal of psychological tendencies and human
weakness,’ the [judge’s] interest ‘poses such a risk of actual
bias or prejudgment that the practice must be forbidden if the
guarantee of due process is to be adequately implemented.’”
Caperton, 556 U.S. at 883–84 (quoting Withrow, 421 U.S. at
47). Due process thus mandates a “stringent rule” that may
sometimes require recusal of judges “who have no actual bias
and who would do their very best to weigh the scales of
justice equally” if there exists a “probability of unfairness.”
Murchison, 349 U.S. at 136. But this risk of unfairness has
no mechanical or static definition. It “cannot be defined with
precision” because “[c]ircumstances and relationships must
be considered.” Id.

   For instance, due process requires recusal where the judge
has a direct, personal and substantial pecuniary interest in
convicting a defendant. Tumey, 273 U.S. at 523, 532. Other
34                    HURLES V. RYAN

financial interests also may mandate recusal, even if less
direct. Gibson v. Berryhill, 411 U.S. 564, 579 (1973); see
also Ward v. Monroeville, 409 U.S. 57 (1972) (requiring
recusal where village mayor with revenue production role
also sat as a judge and imposed revenue-producing fines on
the defendant); Lavoie, 475 U.S. at 824–25 (requiring recusal
where (1) a justice of the state supreme court cast the
deciding vote and authored an opinion upholding punitive
damages in certain insurances cases and (2) that same justice
was a plaintiff in a pending action involving the same legal
issues from which he obtained a large monetary settlement).
Non-pecuniary conflicts “that tempt adjudicators to disregard
neutrality” also offend due process. Caperton, 556 U.S. at
878. A judge must withdraw where she acts as part of the
accusatory process, Murchison, 349 U.S. at 137, “becomes
embroiled in a running, bitter controversy” with one of the
litigants, Mayberry, 400 U.S. at 465, or becomes “so
enmeshed in matters involving [a litigant] as to make it
appropriate for another judge to sit,” Johnson v. Mississippi,
403 U.S. 212, 215–16 (1971).

    We now turn our attention to the matter at hand. Having
catalogued the Supreme Court’s clearly established judicial
bias jurisprudence and being mindful of the limitations
AEDPA places on us, we must determine whether the state
court erred in denying Hurles’s judicial bias claim. We focus
our inquiry on Judge Hilliard’s denial of Hurles’s second
PCR, as that five-page minute order is the last reasoned
decision by the state court on the judicial bias claim. Barker
v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005) (citing
Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Avila v.
Galaza, 297 F.3d 911, 918 (9th Cir. 2002)).
                      HURLES V. RYAN                         35

    Ordinarily, we cloak the state court’s factual findings in
a presumption of correctness. 28 U.S.C. § 2254(e)(1).
However, we afford such deference only if the state court’s
fact-finding process survives our intrinsic review pursuant to
AEDPA’s “unreasonable determination” clause. See Taylor,
366 F.3d at 1000. Here, the state court’s fundamentally
flawed fact-finding process, to the extent it constitutes a
process, fails our intrinsic review.

    In his second PCR, Hurles alleged judicial bias. He
argued that Judge Hilliard responded to his special action
petition, received contemporaneous copies of each pleading
filed in her name, knew the pleadings were framed in terms
of her personal opposition to his request for relief, did not
object to the tone or content of the pleadings and repeatedly
denigrated defense counsel. Second PCR at 1-3–1-5. Judge
Hilliard then presided over his trial and sentencing, sentenced
him to death, presided over and denied his first PCR and
presided over his second PCR. Second PCR at 1-2. Judge
Hilliard denied Hurles’s judicial bias claim.

    Judge Hilliard did not hold an evidentiary hearing or
provide another mechanism for Hurles to develop evidence in
support of his claim, despite her conclusion that Hurles
“offer[ed] no factual evidence to support his allegations.”
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”). Even worse, she found facts based on her
untested memory of the events, putting material issues of fact
in dispute. Judge Hilliard concluded that she did not
specifically authorize a pleading to be filed on her behalf, did
not provide any input on the responsive brief, that she was a
nominal party only and that she did not have any contact with
the Arizona Attorney General’s Office. In effect, she offered
36                    HURLES V. RYAN

testimony in the form of her order denying Hurles’s second
PCR. Minute Entry at 2. Hurles had no opportunity to
contest Judge Hilliard’s version of events that took place
years before. Instead, Judge Hilliard accepted her factual
assertions as true and relied on them to conclude that “a
reasonable and objective person would not find partiality.”
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”).

    Judge Hilliard’s denial of Hurles’s judicial bias claim
rests on an unreasonable determination of the facts. We have
held repeatedly 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 deference.
Taylor, 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.”) (internal quotation marks omitted); see also Perez v.
Rosario, 459 F.3d 943, 950 (9th Cir. 2006) (amended) (“In
many circumstances, a state court’s determination of the facts
without an evidentiary hearing creates a presumption of
unreasonableness.”) (citing Taylor, 366 F.3d at 1000); Nunes
v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (“But with
the state court having refused [the 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.”); cf. Killian v. Poole, 282 F.3d 1204, 1208 (9th
Cir. 2002) (“Having refused [petitioner] an evidentiary
hearing on the matter, the state cannot argue now that the
normal AEDPA deference is owed the factual determinations
                      HURLES V. RYAN                        37

of the [state] courts.”); Weaver v. Thompson, 197 F.3d 359,
363 (9th Cir. 1999) (according no deference where written
statements by trial judge to defense counsel “were not subject
to any of the usual judicial procedures designed to ensure
accuracy”).

    This case presents an especially troubling example of
defective fact-finding because the facts Judge Hilliard
“found” involved her own conduct, and she based those
“findings” on her untested memory and understanding of the
events. See Buffalo v. Sunn, 854 F.2d 1158, 1165 (9th Cir.
1988) (finding error when the court relied on “personal
knowledge” to resolve disputed issue of fact); cf. Murchison,
349 U.S. at 138 (“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 impression, the accuracy of which
could not be tested by adequate cross-examination.”).

    We cannot conclude, nor could any appellate panel, that
the record supports Judge Hilliard’s factual findings. Id. at
1000. Any appellate court to whom this defect was pointed
out would be unreasonable in holding that Judge Hilliard’s
fact-finding process was adequate. Id. Based on the flaws in
the state court’s fact-finding process, we conclude the state
court decision resulted in an “unreasonable determination of
the facts” and is not entitled to a presumption of correctness.
See id. at 999 (holding unreasonable determination clause
applies where “the process employed by the state court is
defective”).

    Where a habeas petitioner has not failed to develop the
factual basis of his claim in state court as required by
38                     HURLES V. RYAN

28 U.S.C. § 2254(e)(2), an evidentiary hearing is required if
(1) the petitioner has shown his entitlement to an evidentiary
hearing pursuant to Townsend v. Sain, 372 U.S. 293, 313
(1963), and (2) the allegations, if true, would entitle him to
relief. Stanley, 598 F.3d at 624. A petitioner who has
previously sought and been denied an evidentiary hearing has
not failed to develop the factual basis of his claim. Id. (citing
28 U.S.C. § 2254(e)(2)); Second PCR at 1-7, 1-15 (seeking
right to litigate judicial bias claim before a trial judge other
than Judge Hilliard). Under Townsend, a federal court must
grant an evidentiary hearing in circumstances present here:
(1) the state courts factual determinations are not fairly
supported by the record as a whole, and (2) the fact-finding
procedure employed by the state court was not adequate to
afford a full and fair hearing. Townsend, 372 U.S. at 313.
Therefore, Hurles is entitled to an evidentiary hearing if his
allegations, if proved, would entitle him to relief. Stanley,
498 F.3d at 624. They would.

    In determining whether Hurles enjoyed “a fair trial in a
fair tribunal,” Bracy, 520 U.S. at 904, we must consider
whether the probability that Judge Hilliard harbored actual
basis against Hurles is too high to be constitutionally
tolerable, Withrow, 421 U.S. at 47. We must ask whether the
average judge, in Judge Hilliard’s position, was likely to sit
as a neutral, unbiased arbiter or whether there existed an
unconstitutional risk of bias. Caperton, 556 U.S. at 881. But
to consider fairly the potential for bias, we must consider the
average reasonable judge in the particular circumstances in
which Judge Hilliard found herself. Murchison, 349 U.S. at
136 (noting that the probability of unfairness “cannot be
defined with precision. Circumstances and relationships must
be considered.”). While Hurles does not face the daunting
task of proving actual bias in order to establish a due process
                       HURLES V. RYAN                         39

violation, Lavoie, 475 U.S. at 825, as the risk of actual bias or
prejudgment goes up, so, too, does the strength of his judicial
bias claim, see Caperton, 556 U.S. at 883–84. Thus, a
likelihood of unfairness would require recusal even if Judge
Hilliard did not actually harbor bias against Hurles.
Murchison, 349 U.S. at 136.

    The tenor of Judge Hilliard’s responsive pleading in the
special action proceeding, by itself, suggest strongly that the
average judge in her position could not later preside over
Hurles’s guilt phase, penalty trial and post-conviction
proceedings while holding “the balance nice, clear and true”
between the state and Hurles. Tumey, 273 U.S. at 532. But
proof that Judge Hilliard participated in the special action
proceedings as more than a nominal party, had contact with
French, commissioned or authorized the responsive pleading
or provided any input on the brief, would help establish that
Judge Hilliard became “so enmeshed in matters involving
[Hurles] as to make it appropriate for another judge to sit,”
Johnson, 403 U.S. at 215–16, or that Judge Hilliard became
“embroiled in a running, bitter controversy” with Hurles and
his counsel, Mayberry, 400 U.S. at 465. See Murchison,
349 U.S. at 137; Johnson, 403 U.S. at 215. Such evidence
certainly would show an unconstitutional risk of actual bias.

    Because Hurles’s allegation of judicial bias would, if
proved, entitle him to federal habeas relief, the district court
abused its discretion in denying this claim without an
evidentiary hearing. Stanley, 598 F.3d at 626.

IV.     CONCLUSION

   For the foregoing reasons, we remand for an evidentiary
hearing on Hurles’s claim of judicial bias, remand for
40                        HURLES V. RYAN

consideration of appellate counsel’s failure to raise Hurles’s
Ake claim and otherwise affirm the district court.

  AFFIRMED              in     part;     REVERSED             in    part;
REMANDED.



IKUTA, Circuit Judge, dissenting:

    Today the majority offers a new way to evade AEDPA
deference: make an unsupported—and unsupportable—
assertion that the state court’s fact finding process is
“unreasonable” for purposes of § 2254(d)(2).1



  1
    A reasonable person may wonder why the majority has reissued this
opinion for the third time, almost four years after the case was submitted
on October 7, 2010, particularly when doing so will vacate a prior version
of the opinion which has been the subject of a cert petition pending before
the Supreme Court for nearly a year.

     A brief history is in order. After the case was submitted in 2010, the
majority issued its first opinion on July 7, 2011. 650 F.3d 1301 (9th Cir.
2011) (withdrawn). After Arizona filed a petition for rehearing, and the
majority ordered a response, the majority withdrew its opinion and
reissued a revised opinion on January 18, 2013. 706 F.3d 1021 (9th Cir.
2013) (withdrawn). An accompanying order stated that Arizona’s petition
for rehearing and rehearing en banc was moot. Id. at 1027.

      On February 1, 2013, Arizona filed a motion asking the court to rule
on its petition for rehearing en banc which had been pending for more than
17 months. Arizona argued that its petition for rehearing was not moot,
because the second version of the opinion made the same mistake as the
first version: both opinions sidestepped AEDPA deference by holding that
the state trial court made an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2).
                           HURLES V. RYAN                                 41

    In this case, the state judge resolved a recusal motion
based on the judge’s own understanding of whether her
impartiality might be questioned. Nothing about that is
unusual: federal courts, including this one, uniformly adopt
this approach. See, e.g., Suever v. Connell, 681 F.3d 1064,
1065 (9th Cir. 2012); see also Miles v. Ryan, 697 F.3d 1090,
1090 (9th Cir. 2012). Yet the majority notes that the state
judge did not hold an evidentiary hearing on the petitioner’s
claim that recusal was appropriate, and concludes that “[a]ny
appellate court to whom this defect was pointed out would be
unreasonable in holding that [the state judge’s] fact-finding
process was adequate.” Maj. op at 37.



     While Arizona’s motion was pending before the panel, Hurles filed
a motion to remand his ineffective assistance of counsel claims pursuant
to Martinez v. Ryan, 132 S.Ct. 1309 (2012). Although Hurles’s motion
came a year after Martinez was decided, and was clearly waived (as well
as being meritless, as explained below), the panel stayed the mandate on
March 19, 2013, pending a decision by our en banc panel in Detrich v.
Ryan, 740 F.3d 1237 (9th Cir. 2013). When this opinion was issued in
September 3, 2013, it did not shed any light on Hurles’s Martinez motion.
But the panel further deferred its ruling on Hurles’s Martinez motion
pending the mandate of this court’s decision in Nguyen v. Curry, 736 F.3d
1287 (9th Cir. 2013), which was finally issued in April 2014.

     In fact, the majority failed to address Arizona’s February 2013 motion
for a ruling on its original petition for rehearing until today. Concerned
that its petition for certiorari would become time barred under U.S.
Supreme Court Rule 13(2), Arizona filed a protective petition for
certiorari on June 17, 2013. The Supreme Court first distributed this cert
petition for the conference of September 30, 2013, and has relisted it for
every subsequent conference.

     In this third opinion, the majority persists in making the same error
that Arizona targeted in its original petition for review, and by vacating its
second opinion, has further delayed the Supreme Court’s consideration of
this error.
42                    HURLES V. RYAN

    Of course this conclusion is wrong. Worse, this
conclusion is likely to work mischief by casting doubt on
whether state and federal judges can ever appropriately make
recusal decisions without first holding evidentiary hearings.
Making this conclusion even more absurd, the absence of an
evidentiary hearing in this case is entirely irrelevant, because
even if all the petitioner’s allegations were true, his due
process rights were not violated.

    And not only does the majority make the district court
hold a meaningless evidentiary hearing, but the majority also
requires it to engage in another futile exercise of considering
whether the procedural default of the claim that Hurles’s
appellate counsel was ineffective for failing to raise a
meritless claim under Ake v. Oklahoma, 470 U.S. 68 (1985)
should be excused under Martinez v. Ryan, 132 S.Ct. 1309
(2012). Because even the most superficial review of this
defaulted claim demonstrates that it is facially meritless, the
majority violates our case law and wastes judicial resources
by remanding it for further review.

    Because this opinion misreads the law, distorts the record,
and casts off AEDPA deference on the basis of a non-existent
fact-finding flaw, I dissent.

                               I

                               A

    The facts of Hurles’s crime form the backdrop for the
dispute over whether Hurles needed a second attorney, which
is at the heart of his habeas claim. The Arizona Supreme
Court provided the following description:
              HURLES V. RYAN                       43

    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 Blanton,
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.]

    Between 3:00 and 4:00 p.m., Hurles rode
[a borrowed] 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
44                 HURLES V. RYAN

     received the bite marks in the fight. As part
     of his insanity defense, however, Hurles later
     claimed he had no recollection of anything
     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. . . .

         . . . Blanton would have suffered great
     terror as she was stabbed repeatedly by
     Hurles. She also must have suffered great
                      HURLES V. RYAN                         45

       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, 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
second counsel to aid in his defense. His argument was
summary, comprising only four and a half pages. In
identifying why he required the appointment of additional
counsel, he made only three brief points: (1) “[i]t is apparent
that this case will involve numerous civilian and law
enforcement witnesses”; (2) “the State will utilize the
services of forensic experts on the issues of identification and
sexual assault”; and (3) “[p]reparation for the possible
penalty phase will [be] in itself a time consuming, complex
process.” To support his arguments on the third point, Hurles
cited to California law, and its presumption that a second
attorney is required in a death penalty case. As later noted by
46                         HURLES V. RYAN

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 counsel.” Hurles v. Superior
Court (Hurles I), 849 P.2d 1, 4 (Ariz. Ct. App. 1993). The
motion made no mention of possible defenses, did not discuss
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. Instead, the motion simply asserted that
failure to appoint second counsel would potentially violate
Hurles’s constitutional rights because “[d]efense counsel
needs such co-counsel assistance due to the nature of the case
in order to effectively advise the defendant and ensure the
defendant’s right to the effective assistance of counsel.”

    After the state trial court (Judge Hilliard) denied the
request, Hurles filed a petition for special action in the
Arizona Court of Appeals,2 raising the same arguments he
presented in his motion. Per Arizona’s rules for special
actions, Hurles named the trial judge, Judge Hilliard, as a
nominal respondent, and the State of Arizona, represented by
the office of the Maricopa County Attorney, as the real party
in interest. See Hurles I, 849 P.2d at 2. In response, the
Arizona Attorney General filed a brief in Judge Hilliard’s
name, in which the Attorney General explained that the
presiding criminal judge of the Maricopa County Superior


 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.
                      HURLES V. RYAN                         47

Court (not Judge Hilliard) had requested a responsive
pleading in the special action. Id. at 2 n.2. Then-current
Arizona precedent held that a judge had the right to appear in
special action proceedings, even though the judge was merely
a nominal party. Fenton v. Howard, 575 P.2d 318, 320 (Ariz.
1978). The state Attorney General responded on Judge
Hilliard’s behalf because Maricopa County, which was
prosecuting Hurles, could not take a position on the selection
of his counsel in the special action proceeding. Hurles I,
849 P.2d at 2.

    The responsive brief explained the basis for Judge
Hilliard’s determination that Hurles’s case was
straightforward enough to be handled by one attorney. The
brief reviewed the aspects of the case that were relevant to
making this determination. Rather than describing the facts
of the underlying sexual assault and murder, the brief stated
only that the State had charged Hurles “with the brutal
murder of a librarian in Buckeye, Arizona in November,
1992,” and listed the three charges in the indictment. It stated
that Hurles’s counsel had not yet noticed any defenses,
disclosed the names of witnesses, or requested a competency
examination. It then described the State’s case against
Hurles: “An examination of the State’s evidence illustrates
that its case against Petitioner is very simple and
straightforward, compared to other capital cases, contrary to
Petitioner’s assertions.” The brief noted that Maricopa
County planned to call relatively few witnesses, namely ten
law enforcement agents, the medical examiner, and several
civilians, contrary to Hurles’s claim that a second counsel
was required due to the high number of witnesses and
forensic experts. Further, the brief stated that the county had
expressed its intent to present the following physical
evidence: Hurles’s clothing, which was “stained with blood
48                    HURLES V. RYAN

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.” Thus, the brief focused on
the straightforward nature of the State’s case and the facts in
evidence; it did not discuss the merits or strength of the
State’s case or presume that Hurles was guilty of the murder
with which he was charged.

     Turning to Hurles’s legal argument for appointment of a
second attorney, the brief asserted that Hurles’s reliance on
California precedent was misplaced because Arizona had
adopted different rules and procedures. Specifically,
according to the brief, while California law presumed the
necessity of a second attorney in capital cases, Arizona had
no such presumption. Further, in refuting Hurles’s claim that
the need to prepare simultaneously 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 an extension of that time for
good cause. These procedural differences made concurrent
preparation for both phases far less urgent in Arizona than in
its sister state.

    In response to Hurles’s argument that appointment of a
second attorney was necessary to “ensure the defendant’s
right to the effective assistance of counsel,” the brief stated
that “if Appointed Counsel believes, because of her caseload,
personal competence, or otherwise, that she is incapable of
rendering ‘competent representation’ of the Petitioner, she is
ethically bound to withdraw from this case,” and asserted that
there were other attorneys who provided contract services for
                      HURLES V. RYAN                         49

Maricopa County who would be able to provide competent
representation.

                               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. After noting that the real party in interest in the
special action proceeding was the State of Arizona, the court
stated that “the record does not indicate whether Judge
Hilliard, the nominal respondent, actually authorized such a
pleading to be filed.” Id. at 2 n.2. Further, the court stated
that from the Attorney General’s statement at oral argument,
“the pleading was requested by the presiding criminal judge,
not by Judge Hilliard, and there was no contact between
Judge Hilliard and the Attorney General’s office as the
pleading was prepared.” Id.

    Turning to the standing issue, the Arizona Court of
Appeals acknowledged that in Fenton v. Howard, 575 P.2d
318 (Ariz. 1978), the Arizona Supreme Court had held that “a
judge does have the right to appear and to be represented in
a special action against him, where the judge is a named
respondent,” 575 P.2d at 320, 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 decision the judge
seeks to defend.” Hurles I, 849 P.2d at 3. Notwithstanding
this precedent, after examining cases suggesting a narrower
50                        HURLES V. RYAN

reading of Fenton, see, e.g., Dunn v. Superior Court,
722 P.2d 1164, 1166–67 (Ariz. Ct. App. 1989), 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 correctness of an individual ruling in a single
case.” Hurles I, 849 P.2d at 3. 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
petition, the Arizona Court of Appeals upheld Judge
Hilliard’s ruling. Because Hurles’s counsel had failed to
make “a particularized showing” of the need for a second
lawyer and did not “submit evidence to the trial court
regarding customary practice in defense of capital cases,” the
court found “no matter that warrants special action
intervention at this time.” Id.

    The case proceeded to trial. Hurles did not raise 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.3


 3
   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. Arizona v.
                           HURLES V. RYAN                                51

                                     D

    In January 2000, Hurles filed his first federal habeas
petition in district court and filed an amended petition a few
months later. The district court determined that Hurles had
failed to present two of his claims to state court, and so
Hurles returned to the state court to exhaust these claims. In
January 2001, Hurles filed a motion in the state court
proceedings to recuse Judge Hilliard from further
involvement in his case because he intended to file a second
petition for post-conviction relief that would raise an
appearance-of-bias due process claim based on the special
action proceeding. Hurles’s recusal motion was referred to a
different state trial judge, Judge Ballinger, who ruled that
there was no basis to transfer Hurles’s case to another judge.4

    In March 2001, Hurles submitted his second petition for
post-conviction relief, which was assigned to Judge Hilliard
pursuant to Arizona Rule of Criminal Procedure 32.4(e) and
Judge Ballinger’s determination. Judge Hilliard noted the
applicable objective test under Arizona 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 General had no
specific authorization to file a pleading on her behalf in the


Hurles, No. CR-99-0422-PC, Order Denying Petition for Review (Ariz.
Jan 7, 2000).
 4
     Judge Ballinger construed Hurles’s motion as a motion for change of
judge for cause, which, under Arizona Rule of Criminal Procedure 10.1(a),
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.”
52                        HURLES V. RYAN

special action, and that she (Judge Hilliard) had made no
contact with the Attorney General’s office. 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.
After ruling that the facts did not require her recusal as a
matter of state law and did not amount to a due process
violation, Judge Hilliard rejected Hurles’s bias claim in
August 2002. The Arizona Supreme Court affirmed without
opinion.

    While this state court proceeding was ongoing, Hurles’s
federal habeas proceedings were also moving forward slowly.
In September 2008, the district court denied Hurles’s
amended federal petition on the merits. Hurles timely
appealed.

                                    II

    The correct application of AEDPA to this case is
straightforward. The state court determined that Judge
Hilliard’s role in Hurles’s proceedings did not deprive him of
his due process rights. We are tasked with determining
whether that determination was contrary to Supreme Court
precedent for purposes of § 2254(d)(1).5 A state court
decision is “contrary to” clearly established Supreme Court
precedent only if “the state court applies a rule that

  5
    The state 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, 805 (1991). Because the court did
not expressly apply the Supreme Court’s decisions considering when a
probability of judicial bias rises to a constitutional level, only the
“contrary to” prong of § 2254(d)(1) is at issue here. See Williams v.
Taylor, 529 U.S. 362, 405–07 (2000) (describing the situations in which
the “contrary to” prong will apply).
                      HURLES V. RYAN                        53

contradicts the governing law set forth in Supreme Court
cases or if the state court confronts a set of facts materially
indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrives at a result different
from its 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
distinction” between the case before it and the Supreme Court
precedent establishing that rule of law. Murdoch v. Castro,
609 F.3d 983, 991 (9th Cir. 2010) (en banc).

                              A

    Here, a state court could certainly draw a principled
distinction between the situation in this case and those in the
Supreme Court precedents cited by Hurles, and it is actually
quite a stretch to hold these precedents applicable at all. The
Due Process Clause requires recusal when “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). This standard is objective; judges
must recuse themselves in circumstances that “would offer a
possible temptation to the average man as a judge . . . not to
hold the balance nice, clear, and true between the State and
the accused.” In re Murchison, 349 U.S. 133, 136 (1955)
(quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Judges
are presumed to adjudicate with “honesty and integrity,”
Withrow, 421 U.S. at 47, however, and the situations in which
this presumption is overcome are rare: “[M]ost matters
relating to judicial disqualification do not rise to a
constitutional level,” Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 876 (2009) (quoting FTC v. Cement Inst., 333
U.S. 683, 702 (1948)) (internal alteration omitted), and it is
54                     HURLES V. RYAN

only in “rare instances” that the Constitution requires recusal.
See Caperton, 556 U.S. at 890.

     “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). The first arises
where a judge “has a direct, personal, substantial pecuniary
interest in reaching a conclusion against [one of the
litigants],” id. (quoting Tumey, 273 U.S. at 523) (internal
quotation marks omitted), or where a financial connection to
a litigant (such as a massive campaign donation from one
party to the judge) creates a constitutionally intolerable risk
of bias, Caperton, 556 U.S. at 884. The second occurs when
a judge “becomes embroiled in a running, bitter controversy”
with one of the litigants. Id. (quoting Mayberry v.
Pennsylvania, 400 U.S. 455, 465 (1971)) (internal quotation
marks omitted). Finally, due process might require recusal
when a judge “acts as ‘part of the accusatory process.’”
Crater, 491 F.3d at 1131 (quoting In re Murchison, 349 U.S.
at 137).

     Other than those cases in which judges have financial
interests, which are not relevant here, the Supreme Court
cases requiring recusal based on an appearance of bias arise
in the context of criminal contempt proceedings. Caperton,
556 U.S. at 880 (discussing precedent). In Murchison, for
example, the Court held unconstitutional a Michigan practice
in which judges would order witnesses to appear before them,
hold them in contempt, and then preside over their contempt
trials. 349 U.S. at 134. The Court held it unconstitutional for
a judge to preside over a trial in this situation; it amounted to
a “judge-grand jury,” which inappropriately involved the
judge in the “accusatory process.” Id. at 137. In Johnson v.
                      HURLES V. RYAN                        55

Mississippi, 403 U.S. 212 (1971) (per curiam), the Court held
it unconstitutional for a judge to preside over an individual’s
contempt trial, where the individual had been held in
contempt two days after successfully enjoining the judge
from systematically excluding blacks and women from juries.
Id. at 214. That same year, in Mayberry v. Pennsylvania,
400 U.S. 455 (1971), the Court held that a judge who had
been berated continuously by a litigant before finally holding
him in contempt could not preside over the contempt trial. Id.
at 465 (“No one so cruelly slandered is likely to maintain that
calm detachment necessary for fair adjudication.”); see also
Taylor v. Hayes, 418 U.S. 488, 501–02 (1974) (relationship
between judge and lawyer was such that Due Process Clause
required another judge for lawyer’s contempt trial).

    The fact that all these cases arise in the context of
criminal contempt proceedings is instructive because this
highlights the circumstances where “the probability of actual
bias . . . is too high to be constitutionally tolerable,”
Caperton, 556 U.S. at 877 (quoting Withrow, 421 U.S. at 47).
Specifically, the probability of bias reaches constitutional
proportions when a judge is in a position to first accuse an
individual of wrongdoing and then sit in judgment of whether
any wrong was in fact committed.

                              B

    The state court’s rejection of Hurles’s due process claims
was not contrary to these precedents because Hurles’s
allegations, even if true, do not give rise to any of these
circumstances. According to the majority, Hurles makes four
allegations that, if true, “would show an unconstitutional risk
of actual bias.” Maj. op. at 39. These four allegations are
that Judge Hilliard: (1) “participated in the special action
56                    HURLES V. RYAN

proceedings as more than a nominal party”; (2) “had contact
with French”; (3) “commissioned or authorized the
responsive pleading”; or (4) “provided any input on the
brief.” Id. All four of these assertions are essentially the
same; they allege that Judge Hilliard had some (or even
significant) responsibility for the contents of the special
action brief defending her decision to deny Hurles’s motion
for a second attorney.

    But even accepting these allegations as true, the concerns
identified by the Supreme Court do not arise. First, this case
does not involve a contempt hearing or any analogous
situation; in the special action proceeding, Judge Hilliard
neither acted as a prosecutor nor sought to advance the
prosecutor’s interest, and thus was not part of the “accusatory
process.” See Crater, 491 F.3d at 1131. The special action
proceeding was ancillary to any determination of guilt or
penalty, and involved an evaluation of the evidence only for
the purpose of determining whether a second attorney was
necessary. As the Arizona Court of Appeals noted, Judge
Hilliard’s pleading “merely argues that the respondent judge
ruled properly on the evidence before her.” Hurles I, 849
P.2d at 4. This sort of pleading is fully consistent with
impartial adjudication.

    Second, the record here does not show that Judge Hilliard
was “enmeshed” in matters involving Hurles, or that someone
in her position would likely have a personal animus toward
him. The contents of Judge Hilliard’s brief are unremarkable.
As described above, the brief explains the reasons Judge
Hilliard denied the motion, namely, that the state’s evidence
was simple and straightforward, Hurles’s counsel had not
indicated an intent to put on a more complex defense, and
what was “required to prepare for trial in this case is exactly
                      HURLES V. RYAN                         57

what is required of defense counsel in any criminal case.”
The Arizona Court of Appeals agreed with this conclusion.

    Indeed, a fair review of the brief provides no support for
the majority’s assertion that the “tenor of Judge Hilliard’s
responsive pleading in the special action proceeding, by itself,
suggest[s] strongly that the average judge in her position
could not later preside over Hurles’s guilt phase, penalty trial
and post-conviction proceedings” in an unbiased fashion.
Maj. op. at 39 (emphasis added). While the brief made
mildly disparaging remarks regarding Hurles’s counsel
(suggesting that if the counsel did not feel up to the task of
rendering competent representation without court-appointed
co-counsel, she should withdraw), the Supreme Court has
never held that a judge’s sour or ill-tempered remarks alone
create an appearance of bias necessitating recusal. See, e.g.,
Liteky v. United States, 510 U.S. 540, 555–56 (1994)
(“[E]xpressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect
men and women, even after having been confirmed as federal
judges, sometimes display,” does not necessitate recusal
under 28 U.S.C. § 455(a)); see also United States v.
McTiernan, 695 F.3d 882, 892 (9th Cir. 2012) (holding that
the presiding judge’s negative comments toward the
defendant, such as stating that the defendant “is clearly
willing to lie whenever it suits his purpose” did not warrant
recusal); cf. United States v. Wilkerson, 208 F.3d 794, 799
(9th Cir. 2000) (“The dissent erroneously conflates a judge’s
asserted displeasure with ‘assuming the role of prosecutor’”).
Thus, even if Judge Hilliard had personally penned the
special action brief, Hurles did not suffer a due process
violation.
58                    HURLES V. RYAN

    In sum, even if we were to review the due process issues
in this case de novo, Hurles would be unable to establish a
due process violation. From this, it follows a fortiori that the
state court’s conclusion was not “contrary to” clearly
established precedent. Thus, the court is not relieved of
AEDPA deference under § 2254(d)(1), and the district court’s
decision should be affirmed.

                              III

    The majority does not engage in this § 2254(d)(1)
analysis. Instead, the majority holds that it is relieved of
AEDPA deference under § 2254(d)(2) because the state trial
court made an unreasonable determination of the facts. But
the majority’s claim that the state court’s fact-finding process
was deficient in some material way is entirely baseless.

                               A

    In considering a challenge to a state court’s finding of
fact, AEDPA requires deference to state court decisions
unless those decisions are “objectively unreasonable,” not just
incorrect. Lambert, 393 F.3d at 972; see also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). In considering this sort
of challenge, “we must more than merely doubt whether the
process operated properly.” Taylor v. Maddox, 366 F.3d 992,
1000 (9th Cir. 2004). “Rather, we must be satisfied that any
appellate court to whom the defect is pointed out would be
unreasonable in holding that the state court’s fact-finding
process was adequate.” Id.

    According to the majority, when Judge Hilliard rejected
Hurles’s claim (in his second PCR petition) that she was
biased due to her participation in the special action
                      HURLES V. RYAN                        59

proceeding, Judge Hilliard engaged in objectively
unreasonable fact-finding. Maj. op at 35–36. The majority
claims that Judge Hilliard’s fact-finding process was deficient
because: (1) she relied on her own recollections in
determining that her role in the special action proceeding did
not require her recusal, Maj. op. at 35–36, and (2) she did not
hold an evidentiary hearing to give Hurles an opportunity to
present evidence. Maj. op. at 35. The majority asserts that
any appellate panel would be unreasonable in finding Judge
Hilliard’s fact-finding process adequate. Maj. op. at 37.

                              B

    With all due respect, this reasoning does not pass the
straight face test. We cannot hold that Judge Hilliard was
objectively unreasonable in ruling on this recusal motion
when federal judges, like Arizona judges, routinely rule on
motions to recuse themselves. See 28 U.S.C. § 455(a); Ariz.
Code of Jud. Conduct R. 2.11(A) (2009); see e.g., Miles,
697 F.3d at 1090 (Berzon, J. & Tallman, J.) (stating that
“each judge may decide for himself or herself whether recusal
is appropriate”); Suever, 681 F.3d at 1065 (Nelson, J.)
(determining that she need not recuse herself from case
because of the possibility of class membership). For the same
reason, Judge Hilliard was not objectively unreasonable in
consulting her own recollections; federal judges regularly
determine the relevant facts in making recusal decisions. See,
e.g., Cheney v. U.S. Dist. Ct. for the Dist. of Columbia,
541 U.S. 913, 929 (2004) (Scalia, J.) (explaining his
friendship with then-Vice President Cheney, and deciding not
to recuse himself from a case in which Cheney was a nominal
party); Microsoft Corp. v. United States, 530 U.S. 1301,
1301–02 (2000) (Rehnquist, C.J.) (discussing his son’s
representation of Microsoft in another matter, but deciding
60                    HURLES V. RYAN

not to recuse himself because no “well-informed individual
would conclude that an appearance of impropriety exists”);
Perry v. Schwarzenegger, 630 F.3d 909, 912 (9th Cir. 2011)
(Reinhardt, J.) (discussing his relationship with his wife and
her involvement in the matter before him in the course of
concluding that “[p]roponents’ contention that I should recuse
myself due to my wife’s opinions is based upon an outmoded
conception of the relationship between spouses.”).

    If anything, the fact-finding process Judge Hilliard
engaged in was more careful and reasonable than those
engaged in by judges of this circuit on a regular basis,
because she received a separate opinion from Judge
Ballinger, a different state court judge, who independently
reviewed the record and concluded that there was no
appearance of impropriety requiring recusal. Cf. Sivak v.
Hardison, 658 F.3d 898, 924–25 (9th Cir. 2011) (rejecting a
similar judicial bias claim, and noting with approval that an
independent judge determined that recusal was not
necessary); Miles, 697 F.3d at 1090 (holding that a federal
judge may decide her own recusal and rejecting the argument
that other federal judges should vote on the issue). In light of
Judge Ballinger’s review of the record and determination that
Judge Hilliard’s impartiality could not be reasonably
questioned, it seems impossible to conclude that all jurists
would agree that the state court made an unreasonable
determination of the facts.

                               C

    The majority’s second rationale for holding that it is
relieved of AEDPA deference, that no reasonable jurist could
decide a recusal issue without holding an evidentiary hearing,
is completely untenable and lacks any support in circuit or
                      HURLES V. RYAN                        61

Supreme Court precedent. Until today, judges routinely
decided for themselves whether recusal was appropriate in
cases where their impartiality might be questioned. See, e.g.,
Suever, 681 F.3d at 1065. Evidentiary hearings were neither
required nor typically employed. See, e.g., Miles, 697 F.3d
at 1090. Today’s opinion, however, raises troubling
implications, and casts serious doubt on the permissibility of
this longstanding practice.

    This case is a particularly bad springboard for imposing
a new evidentiary hearing requirement. We do not fault a
state court for failing to hold an evidentiary hearing if the
petitioner has not identified any evidence material to the
constitutional claim. See Hibbler v. Benedetti, 693 F.3d
1140, 1148 (9th Cir. 2012) (noting the well-established rule
“that no [evidentiary] hearing is required [i]f the record
refutes the applicant’s factual allegations or otherwise
precludes habeas relief.” (quoting Landrigan, 550 U.S. at
474)) (quotation marks omitted, second alteration in original).
Rather, unless an alleged factual error “goes to a material
factual issue that is central to petitioner’s claim,” Taylor,
366 F.3d at 1001, there is no “unreasonable determination of
the facts” to justify relieving a federal court of AEDPA
deference under § 2254(d)(2). Here, as previously explained,
supra Section II, even if an evidentiary hearing proved that
Hurles’s factual allegations were true, and we deemed Judge
Hilliard to be responsible for every word in the special action
brief, Hurles did not suffer any violation of his due process
rights. Under these circumstances, an evidentiary hearing
would have been pointless, and thus the state court was not
unreasonable in declining to hold one. See Hibbler, 693 F.3d
at 1147 (“[a] state court’s decision not to hold an evidentiary
hearing does not render its fact-finding process unreasonable
so long as the state court could have reasonably concluded
62                     HURLES V. RYAN

that the evidence already adduced was sufficient to resolve
the factual question.” (citing Earp v. Ornoski, 431 F.3d 1158,
1170 (9th Cir. 2005))).

     In short, there was nothing wrong with the state court’s
fact-finding process. This makes the majority’s conclusion
that any appellate panel “would be unreasonable in holding
that Judge Hilliard’s fact-finding process was adequate,” Maj.
op. at 37, not only wrong, but objectively unreasonable.
There is no rational justification for the majority to hold that
it is relieved of AEDPA deference under § 2254(d)(2).

                               D

    Finally, even if we were relieved of AEDPA deference,
the majority errs in remanding the case to the district court for
an evidentiary hearing. As the majority notes, the court must
find that Hurles’s allegations, if true, would entitle him to
relief. See Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir.
2010). But as previously discussed, there is simply nothing
in the record, even under de novo review, that suggests an
unconstitutional risk of bias. As the Supreme Court recently
reminded us, it is not enough for a federal court to identify an
unreasonable determination of the facts, there must also be a
constitutional violation. See Wilson v. Corcoran, 131 S. Ct.
13, 14 (2010) (“Federal courts may not issue writs of habeas
corpus to state prisoners whose confinement does not violate
federal law”) (per curiam). Here there was neither, and the
remand is erroneous and a waste of judicial resources.

                               IV

   Not content with evading AEDPA review by erroneously
invoking § 2254(d)(2), the majority also improperly invokes
                       HURLES V. RYAN                          63

Martinez to excuse Hurles’s procedural default of his
ineffective-assistance-of-appellate-counsel claims. Maj. op.
at 18–21.

    Martinez addressed a situation where a habeas petitioner
raises a procedurally defaulted claim of ineffective assistance
of trial counsel. Under Martinez, a federal court can excuse
the procedural default (and hear the claim) if: (1) the first
place that claim could have been raised was in a state post-
conviction relief proceeding (termed an “initial-review
collateral proceeding” in Martinez); (2) the post-conviction
relief counsel’s failure to raise that claim constituted
ineffective assistance of counsel under Strickland; and
(3) “the underlying ineffective-assistance-of-trial counsel
claim is a substantial one.” Martinez, 132 S. Ct. at 1318. In
order to show ineffective assistance of counsel under the
Strickland standard, a petitioner must show: (1) that the
counsel’s performance was deficient, because counsel “made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and (2) that this deficient performance was “so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland v. Washington, 466 U.S. 668,
687 (1984). As the Supreme Court has noted, we review
ineffective assistance claims under a “highly deferential”
standard, indulging “a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689.

   The majority here focuses on Hurles’s claim that his
appellate counsel rendered ineffective assistance by failing to
64                         HURLES V. RYAN

raise an Ake claim to the state court.6 Maj. op. at 19–21. This
claim is procedurally defaulted, but Hurles argues that the
court should excuse the default because it was caused by
ineffective assistance of post-conviction counsel. But
contrary to the majority’s conclusion, Hurles did not have
cause to excuse this procedural default for a simple reason:
There is no colorable claim that Hurles’s appellate counsel
was ineffective under Strickland, and therefore, post-
conviction relief counsel could not have been ineffective for
failing to bring a meritless ineffective-assistance-of-appellate-
counsel claim.

    According to Hurles, appellate counsel’s error was the
failure to argue on appeal that the trial court’s denial of
Hurles’s request for a brain scan violated Ake v. Oklahoma,
470 U.S. 68 (1985). But the failure to raise such an Ake claim
to the state appellate court could not be ineffective assistance
of counsel. At trial, Hurles presented an insanity defense.
Under Arizona’s then applicable M'Naghten test for insanity,
Hurles had to prove by clear and convincing evidence that he
“was suffering from such a mental disease or defect as not to
know the nature and quality of the act or, if [he] did know,

 6
   Hurles claims ineffective assistance of appellate counsel, even though
such claims are not cognizable under Martinez, which only allowed
petitioners to raise procedurally defaulted claims based on ineffective
assistance of trial counsel. See Martinez, 132 S. Ct. at 1315. Martinez
held that the rule barring procedurally defaulted claims “governs in all but
the limited circumstances” the Supreme Court had carved out in that
opinion, which did not include appellate counsel claims. Id. at 1320.
Nevertheless, the Ninth Circuit has ignored this limitation, and expanded
Martinez to apply to claims of ineffective assistance of appellate counsel.
See Nguyen v. Curry, 736 F.3d 1287, 1289 (9th Cir. 2013). Although this
holding is contrary to Supreme Court precedent, it is nevertheless the
settled law of this circuit. Accordingly, a court in our circuit must
consider Hurles’s claims of ineffective assistance of appellate counsel.
                          HURLES V. RYAN                             65

that [he] did not know that what he was doing was wrong.”
Ariz. Rev. Stat. § 13–502(A) (1993). The state trial court
provided Hurles with a psychiatric expert to assist in his
insanity defense, as required by Ake, and denied only
Hurles’s request for a brain scan to confirm the expert’s
diagnosis that Hurles had organic brain damage. When the
brain scan was subsequently performed for the sentencing
hearing, it showed only “subtle nonspecific abnormalities . . .
associated with mild processing difficulty” that were
consistent with “attention deficit disorder.”7

    Under these circumstances, it would be reasonable for
appellate counsel to decide not to raise an Ake claim. First,
such a claim would be contrary to Ninth Circuit precedent.
“By its own terms, Ake ‘limited the right it recognized’ to the
‘provision of one competent psychiatrist.’” Leavitt v. Arave,
646 F.3d 605, 610 (9th Cir. 2011) (quoting Ake, 470 U.S. at
79) (internal alterations omitted). We have explained that
“the defendant lacks the right to appointment of a second
psychiatrist even where the first psychiatrist is alleged to be
incompetent or reaches a diagnosis unfavorable to the
defense.” Id. (internal quotation marks and citations
omitted). Indeed, we have stated that “Ake’s limitation to a
single, independent psychiatrist is critical given that
[p]sychiatry is not . . . an exact science, and psychiatrists
disagree widely and frequently . . . on the appropriate
diagnosis.” Id. (internal quotation marks omitted); see also


  7
    Indeed, the test results were so unhelpful that Hurles’s attorney at
sentencing ignored them for mitigation purposes. Even though the trial
court must consider any relevant mitigating factor, Eddings v. Oklahoma,
455 U.S. 104, 112 (1982), sentencing counsel preferred to focus on a
theory that Hurles’ brain damage was not the sort that showed up in brain
scans.
66                    HURLES V. RYAN

Pawlyk v. Wood, 248 F.3d 815, 823 (9th Cir. 2001) (“[A]
state is required to ensure to a defendant only the provision of
one competent psychiatrist” (internal quotation marks
omitted)); Harris v. Vasquez, 949 F.2d 1497, 1516–18 (9th
Cir. 1990) (same). The majority suggests that appellate
counsel could have distinguished these and other cases, Maj.
op. at 19–20, but even were this possible, the decision not to
raise such a claim falls well within the “exercise of
reasonable professional judgment,” Strickland, 466 U.S. at
690, given the weight of case law counseling against raising
an Ake claim when the trial court denied funds for a second
psychiatric expert.

    Further, even if appellate counsel had a colorable legal
basis to claim there was an Ake error at trial, the record
established that any such error was harmless beyond a
reasonable doubt. Appellate counsel would have known that
the brain scan prepared for Hurles’s sentencing hearing
showed only that Hurles’ suffered from a “subtle and
nonspecific abnormality” consistent with attention deficient
disorder. Such evidence would not have helped Hurles prove
by clear and convincing evidence that his mental disease was
so severe that he did not “know the nature and quality of the
act” or “that what he was doing was wrong.” Ariz. Rev. Stat.
§ 13–502(A) (1993). To the contrary, the results of the brain
scan would have entirely undercut Hurles’s insanity defense,
which was based on expert testimony that Hurles experienced
a psychotic episode at the time of the crime due to an
unspecified brain injury. Cf. Vickers, 144 F.3d at 616
(rejecting an Ake claim when an adverse finding would have
“seriously undercut” the defense).

    In sum, appellate counsel could reasonably decide not to
bring a claim of a trial-level Ake error because such a claim
                           HURLES V. RYAN                                 67

would have no support in the law, and any error would have
been harmless. Accordingly, the failure to bring such a claim
could not be ineffective assistance of appellate counsel under
Strickland. And because there was no viable ineffective-
assistance-of-appellate-counsel claim based on the alleged
Ake error, post-conviction counsel could not be ineffective for
failing to raise it.

    As a result, the majority doubly errs in remanding
Hurles’s defaulted claim that appellate counsel rendered
ineffective assistance of counsel. Hurles could excuse the
procedural default only if post-conviction counsel was
ineffective for failing to raise this claim. But under a proper
application of the deferential Strickland standard, the
ineffective-assistance-of-appellate-counsel claim is meritless,
and therefore post-conviction counsel could not be ineffective
for failing to raise it. Where “there is little doubt about the
correct answer” to the petitioner’s defaulted claims, the
appellate panel should “decide [the] issue in the first instance
rather than remand to the district court.” Detrich v. Ryan,
740 F.3d 1237, 1248 (9th Cir. 2013) (en banc) (plurality
opinion). By failing to apply Strickland’s deferential
standard correctly (or at all), the majority ignored “the correct
answer,” id., and accordingly erred in excusing Hurles’s
default.

                                     V

   The Supreme Court has harshly criticized our non-
compliance with AEDPA deference.8 Here the majority


   8
      See, e.g., Cavazos v. Smith, 132 S. Ct. 2, 7 (2011) (per curiam)
(“Doubts about whether Smith is in fact guilty are understandable. But it
is not the job of this Court, and was not that of the Ninth Circuit, to decide
68                         HURLES V. RYAN

repeats the same mistake corrected by the Supreme Court in
Harrington v. Richter, 131 S. Ct. 770 (2011), now under the
guise of a § 2254(d)(2) analysis instead of § 2254(d)(1)
review. As in Harrington, the majority used its de novo
conclusion that Hurles suffered a due process violation as a
springboard for its § 2254(d)(2) ruling. In effect, the majority
holds that the state court’s factual determination was
unreasonable because the court failed to acknowledge that its




whether the State’s theory was correct. The jury decided that question, and
its decision is supported by the record.”); Cullen v. Pinholster, 131 S. Ct.
1388, 1410–11 (2011); Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011)
(per curiam) (stating that our decision that the state court’s determination
was an unreasonable determination of the facts was “as inexplicable as it
is unexplained”); Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per
curiam); Harrington v. Richter, 131 S. Ct. 770, 785 (2011); Premo v.
Moore, 131 S. Ct. 733, 740 (2011); Rice v. Collins, 546 U.S. 333, 342
(2006) (“The panel majority’s attempt to use a set of debatable inferences
to set aside the conclusion reached by the state court does not satisfy
AEDPA’s requirements for granting a writ of habeas corpus.”); Schriro v.
Smith, 546 U.S. 6, 8 (2005) (per curiam) (“[T]he Court of Appeals
exceeded its limited authority on habeas review . . . .”); 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);
Woodford v. Visciotti, 537 U.S. 19, 20 (2002) (per curiam) (reversing
Ninth Circuit’s grant of habeas relief because it “exceed[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) (admonishing 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 ‘contrary to’
clearly established Supreme Court law” (emphases added)); see generally
Hon. Diarmuid F. O’Scannlain, A Decade of Reversal: The Ninth Circuit’s
Record in the Supreme Court Through October Term 2010, 87 Notre
Dame L. Rev. 2165, 2168–76 (2012).
                       HURLES V. RYAN                         69

participation in the special action proceeding had violated
Hurles’s due process rights. Harrington corrected a similar
error: “The Court of Appeals appears to have treated the
unreasonableness question as a test of its confidence in the
result it would reach under de novo review,” and because the
court “had little doubt that [defendant’s constitutional] claim
had merit, the Court of Appeals concluded the state court
must have been unreasonable in rejecting it.” Harrington,
131 S. Ct. at 786. Equally applicable is Harrington’s
criticism of the Ninth Circuit for “overlook[ing] arguments
that would otherwise justify the state court’s result.” Id. As
in Harrington, the majority here failed to weigh the evidence
in the record that made the state court’s fact-finding process
and factual conclusions reasonable, relying instead on an
unprecedented view that judges must hold evidentiary
hearings on recusal motions. Finally, as Harrington stated,
“[i]t bears repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. The majority clearly lost sight of this
rule, because there is no basis for its holding that the state
court’s fact-finding was either substantively or procedurally
unreasonable. And even if Hurles’s factual allegations were
true, they do not form the basis of a due process claim,
making remand for an evidentiary hearing wholly
inappropriate. Turner v. Calderon, 281 F.3d 851, 890 (9th
Cir. 2002).

    Our responsibility here is clear: under the strictures of
AEDPA and Supreme Court precedent, we are bound to
uphold the state court’s denial of Hurles’s due process claim,
which is neither contrary to Supreme Court precedent nor
based on an unreasonable determination of the facts. Because
the majority’s decision invalidates a lawfully imposed capital
sentence, further frays the (increasingly threadbare) fabric of
70                   HURLES V. RYAN

our AEDPA jurisprudence, and lays the groundwork for other
frivolous habeas challenges to trial judges’ impartiality, I
dissent.
