Soon after my move out here to the Ninth Circuit, I talked about a way that the Ninth Circuit has used to get around Pinholster. Essentially, the Ninth Circuit will conclude that the highly deferential standard of review does not apply, and the court can conduct a de novo review and hear new evidence, where the state court's fact-finding was unreasonable. And one way in which a state court’s fact finding can be unreasonable is where the state court’s factual finding process was deficient. More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).”
It's a lovely and creative way around the most problematic part of Pinholster. But one problem with my prior post was that I did rely, in part, on a decision that subsequently went en banc, Detrich v. Ryan. It means that the original panel decision is not binding law. And that en banc rehearing remains sub judice. The entire decision may end up getting completely vacated by the en banc court.
So I was pleased when the Ninth Circuit decided Hurles v. Ryan.* In Hurles, the Ninth Circuit remanded a capital case for an evidentiary hearing on a judicial bias claim. But to get there, the court had to find that the state court's fact finding process was deficient. Here's 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."
* There seems to be a little bit of a convoluted history as to how this opinion got issued. According to the summary, "The panel withdrew its opinion filed July 7, 2011, andpublished at 650 F.3d 1301 (9th Cir. 2011), filed a replacement opinion, denied a petition for rehearing and rehearing en banc as moot but allowed the parties to file a petition for rehearing and rehearing en banc with respect to the replacement opinion." The instant opinion seems to be the one that was entered after rehearing.
Okay, it is not stated as clearly as it was in Detrich.* But it really is the same principle: the federal courts can hear new evidence and/or hold an evidentiary hearing when the state fact-finding process was deficient. And that includes when no evidentiary hearing was held in state court.
* There they said that where the process was unreasonable, "we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court."
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.
Thus, the Ninth Circuit continues to offer this unreasonable-fact-finding-process as a way around Pinholster where the state court refuses to hold a hearing. Let's hope that the en banc court in Detrich doesn't take it away.