9th Circuit grants in part Arizona death row inmate’s request for remand pursuant to Martinez
Posted on: 6/10/2014 02:31:23 PM by Peoples
On May 16, 2014, in Hurles v. Ryan, ___ F.3d ___, 2014 WL 1979307 (9th Cir. May 16, 2014), the Ninth Circuit (Nelson, with Pregerson; dissent by Ikuta) withdrew its January 18, 2013 opinion and substituted a new opinion.  It again affirmed the denial of several claim and again reversed the denial of a judicial bias claim, remanding for an evidentiary hearing on the issue.  In addition, the panel denied Hurles’ request for remand for consideration of whether ineffective assistance by state post-conviction counsel excused the default of several ineffective assistance of trial and appellate counsel claims.  It did, however, grant a remand for consideration of a defaulted claim of whether appellate counsel was ineffective in failing to challenge the trial court’s denial of neurological testing (the “Ake” claim).  In granting the remand, the panel relied on circuit precedent, Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013, which held that Martinez v. Ryan, 132 S.Ct. 1309 (2012) applies to the failure of post-conviction counsel to raise not only a claim of trial-counsel ineffective assistance, but also a claim of appellate counsel ineffectiveness.  Looking to the merits of the ineffectiveness claim, the panel concluded that appellate counsel was deficient in not raising the denial of testing and that there was prejudice in that a post-guilt phase brain scan confirmed the damage the testifying expert could only say earlier was suspected and needed confirmation from the neurological test.  The panel therefore found cause to excuse the procedural default of the claim. 

Judge Ikuta dissented, both from the reversal of the judicial bias claim and the Martinez-based remand.  Although she found herself bound by the Nguyen decision, even applying it she concluded that Hurles was not entitled to a remand.  In her view, appellate counsel was not ineffective in failing to raise the Ake claim given that Hurles had been provided with a psychiatrist to assist with his insanity defense and the results of the pre-sentencing brain scan were “so unhelpful that Hurles’s attorney at sentencing ignored them for mitigation purposes.”