Last year, I wrote a post about a little case from the Ninth Circuit named Hurles v. Ryan. The post was entitled "Ninth Circuit Stays the Course." That decision represented a reaffirmation of the Ninth Circuit's prior precedent that a state court's failure to hold an evidentiary hearing can represent an unreasonable determination of the facts under 2254(d)(2). Such an unreasonable step would allow the federal court to conduct a de novo review of the constitutional claim and consider facts that the state court unreasonably prevented the petitioner from establishing while in state court.
For me, this is a really important concept. I have complained and complained and complained on here about a specific type of unfairness in the wake of Cullen v. Pinholster, namely a state court's unreasonable failure to hold an evidentiary hearing is binding on the federal court and unfairly limits the factual record that the federal court can consider. The Ninth Circuit in cases such as Hurles found a clever way around this by finding that such an action was an unreasonable determination of the facts under 2254(d)(2). But it's not just clever -- it's just.
Now go back and look at the emphasized language in the first paragraph of this post. See how it is phrased: "can represent." In other words, the Ninth Circuit repeatedly held that it can be unreasonable for a state court to refuse to hold an evidentiary hearing. Hurles was the Ninth Circuit's most recent statement on the issue.
The decision in Hurles has now taken on a life of its own before the Supreme Court. It has been relisted 15 times! I don't know if that's a record, or even if records like that are kept anywhere, but that is a huge number of relists. And every time that the SCOTUSblog Relist post mentions it, it always phrases the issue as whether it is per se unreasonable for a state court to fail to hold an evidentiary hearing. That has routinely bugged me. I figured that they were just parroting the State's question presented. And they probably have been.
Nevertheless, I went back and read my prior post on Hurles. And . . . to my frustration . . . it does appear that the Ninth Circuit did not chose its language carefully in Hurles. Here is what the court said: "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."
Argh. That goes further than the prior precedent. I don't think that the Ninth Circuit meant in Hurles that it was automatically unreasonable for the state court to fail to hold an evidentiary hearing. But that is how that sentence can be read. And, to my surprise, I actually did point out the problem with this sentence in my prior post:
But I will point out that, I don't think it is just in the situations where a hearing was not held in state court (as the court stated in Hurles). It must be where it was unreasonable for the state court not to have held a hearing. In the court's defense, it's discussion in Hurles made clear that the state court was acting unreasonably throughout the fact-finding process.
That is consistent with the prior precedent: an unreasonable denial of a hearing is what matters. Critically, Hurles may have gone a little too far in that sentence quoted above, but not in its overall analysis. It clearly focused on the unreasonableness of the state court's actions. But its poorly chosen language in the quote above may be why it's been relisted 15 times.
What does the future hold for Hurles? It's really hard to predict the outcome when a case gets relisted but there are probably only two that are likely now: (1) a summary reversal; or (2) opinions respecting/dissenting denial of cert. If I had to guess I would say it's the latter. I simply cannot believe that there would be a summary reversal on an issue of first impression for the Court without any briefing, even with the language that the Ninth Circuit used in Hurles.
The odd part about the relists in Hurles is that it wasn't until the second most recent relist on March 7 -- over six months after it was first distributed to a conference -- that the court finally asked for the lower court record. That usually happens much earlier in the process if there is going to be a summary reversal or opinions respecting/dissenting denial of cert. My guess is that the ordering of the record means that those outcomes are now almost inevitable. But they appeared almost inevitable prior to the record getting ordered. It begs the question: what the heck has been happening behind the scenes with this case? Unfortunately, even when the decision is issued, we probably won't ever know exactly why. But there will be a lot of reading between the lines. I guarantee it (See Men's Wearhouse meme).
The next conference is March 21. Let's see if we find out more then.