3 3037? No. A??a OCTOBER TERM, 2015 IN THE SUPREME COURT OF THE UNITED STATES JIMMY TODD KIRKSEY, Petitioner, v. RENEE BAKER, Warden, Respondent. 01:: Petition for Writ of Certi'orarj to the United States Court of Appeals for the M10 Circuit Petition for Writ of Certiorari RENE VALLADARES Federal Public Defender of Nevada MICHAEL PESCETTA Assistant Federal Public Defender michael peecetta @fd. oig DAVID Assistant Federal Public Defender david anthony@fd. org 411 E. Bonneville, Ste. 250 Las Veg as, Nevada 89101 (702) 388- (3577 (702) 388- 5819 (Fax) Attorneys for Petitioner *Counsel of Record M?a? S. Ct. 1309 (2012), due to the failure of prior state counsel to investigate and litigate a meritorious claim of judicial bias? 2. Did Judge Lehman?s failure to order a competency hearing violate Kirksey?s Due Process rights and invalidate his guilty plea to capital murder? a. Did the Ninth Circuit err in refusing to consider Kirksey?s claim that trial counsel was ineffective in failing to investigate his competency and the facts of the case? b. Did the Ninth Circuit err in denying Kirksey?s claim that direct appeal counsel was ineffective in failing to order transcripts of the pretrial proceedings in order to raise claims that Judge Lehman erred in failing to order a competency hearing? 3 3 4was LIST OF PARTIES Petitioner Jimmy Todd Kirksey is an inmate at Ely State Prison. Respondent Adam Paul Laxalt is the Attorney General of the State of Nevada. Respondent Renee Baker is the warden of the Ely State Prison. 3 ia??l 5 QUESTIONS PRESENTED This is a formerly capital case where the single most important piece of evidence relating to the validity of the state proceedings -- a supplemental competency report reversing the opinion of the examining was authored by the trial court and placed in the record as having been ?received? from the Petitioner Jimmy Todd Kirksey was originally found incompetent to stand trial by Franklin Master, M.D. However, instead of conducting a competency hearing, the trial court, the Honorable Jack Lehman, contacted Dr. Master off-the'record and authored a supplemental competency report reversing Dr. Master?s opinion. As a consequence, Kirksey did not receive a competency hearing before Judge Lehman accepted his guilty plea to capital murder and sat on a three- judge panel that ?xed his penalty at death. In state habeas proceedings, Dr. Master testi?ed that he stood by his initial opinion that Kirksey was incompetent. The questions presented are: 1. Did Judge Lehman?s authorship of the supplemental competency report in connection with his off-the-record contact with the examining require his recusal under the Due Process Clause? a. Did the Ninth Circuit err in ?nding that Kirksey?s claims were procedurally barred despite Judge Lehman?s misleading representations at trial, his concealment of the material facts throughout the state proceedings, and the fact that extensive investigation and formal discovery was required in federal habeas corpus proceedings before Kirksey could assert that Judge Lehman authored the competency report? b. Did the Ninth Circuit err in denying Kirksey?s claims of ineffective assistance of trial and direct appeal counsel under Martinez V. Ryan, 132 J) mm Ase 3 TABLE OF CONTENTS QUESTIONS PRESENTED i LIST OF PARTIES PETITION FOR WRIT OF CERTIORARI 1 OPINIONS BELOW 4 JURISDICTION . 4 CONSTITUTIONAL PROVISIONS 4 STATEMENT OF THE CASE 5 A. Facts of the Homicide Offense 5 B. Pre-Trial Proceedings in this Manslaughter Case 6 C. Competency Proceedings 6 D. Plea and Sentencing Proceedings 9 E. Direct Appeal 10 F. First State Post-Conviction Proceeding 11 G. Federal Habeas Proceedings 12 H. Second State Post-Conviction Proceeding 12 l. Post-Exhaustion Federal Habeas Proceedings 13 J. Decisions of the Ninth Circuit Court of Appeals 14 REASONS FOR GRANTING THE PETITION 16 A. The Ninth Circuit Msclassified the Species of Judicial Bias that Occurred in this Case and Therefore Failed to Determine Whether an Appearance of Impropriety Violatcd the Due Process Clause. 18 1. The Ninth Circuit?s Decision Finding Kirksey's Bias Claim Procedurally Defaulted Failed to Consider the Presumption of Regularity that Attends to the Actions of the Trial Court. the Misleading Representations of Judge Lehman and His Concealment of Material Facts Throughout the State Proceedings, and the Extensive Investigation and Formal Discovery that Occurred in Federal Habeas Corpus Proceedings Before Kirksey Could Assert that Judge Lehman Authored the Supplemental Competency Report. 21 iv 3 33 ZQWQE 2. The Ninth Circuit's Rejection of Kirksey?s Ineffective Assistance of Counsel Claims Under Martinez v. Ryan, 132 S. Ct. 1309 (2012) was Based Upon the Court?s Misclassi?cation (Cf the Species of Judicial Bias that Occurred in Kirksey?s ase. 26 B. The Ninth Circuit Erred in Failing to Consider the Merits of Competency and aims. 29 1. Judge Lehman?s Authorship of the Supplemental Competency Report Did not Resolve the Serious Outstanding Issues of Kirltsey?s Competency to Plead Guilty. 31 2. Was Denied an Opportunity to Prove that He was Incompetent at the Time that He Pleaded Guilty and He is Entitled to an Evidentiary Hearing. 33 3. The Ninth Circuit Failed to Determine Whether Trial Counsel Was Ineffective in Failing to Investigate and Litigate the Issues of Kirksey?s Competency and of Judge Lehman?s Failure to Grant a Competency Hearing. 34 4. The Ninth Circuit Erred in Failing to Determine Whether Direct Appeal Counsel Was Ineffective in Failing to Order the Transcripts of the Pre-Trial Proceedings in Order to Raise a Claim that Judge Lehman Should Have Ordered a Competency Hearing 38 CONCLUSION 38 STATEMENT OF RELATED CASES 40 3 3 3243532:- Ae@/gz 3 Table of Authorities 36 57 (1) Federal Cases Aetna Life Ins. Ca. V. La Voie, 475 U.S. 813 (1986) 18 Atkins v. Wighiia, 536 U.S. 304 (2002) 3 Banks V. Dretlce, 540 U.S. 668 (2004) 22, 23 Bracy V. Granaley, 520 U.S. 899 (1997) 22, 23 Brum?'eld v. Cain, 135 S. Ct. 2269 (2015) 32, 33 Campbell V. Rice, 408 F.3d 1166 (9th Cir. 2005) (en banc) 38 Cartalino V. Washington, 122 F.3d 8 (7th Cir. 1997) 20 Cone v. Bell, 556 U.S. 449 (2009) 35 Drape V. Missouri, 420 U.S. 162 (1975) 34 Dusky V. United States, 362 U.S. 402 (1960) 34 Edgar v. KL, 93 F.3d 256 (7th Cir. 1996) 19 Franklin V. McCa 398 F.3d 955 (7th Cir. 2005) 20 Gardner v. Fla, 430 U.S. 349 (1977) 33 Godinez V. Moran, 509 U.S. 389 (1993) 38 In re Kensington Int?l, 368 F.3d 289 (3d Cir. 2004) 19 In re Murchison, 349 U.S. 133 (1955) 18, 19 Johnson V. 335.913.4312; 403 U.S. 212 (1971) 20 Johnson v. Williams, 133 s. Ct. 1038 (2013) 29, 30 Liljeberg V. Health Serve. Acq. 001319., 486 U.S. 847 (1988) 19, 23 V. Overholser, 369 U.S. 705 (1962) 34 V. Ryan, 132 S. Ct. 1309 (2012) passim Mayberry V. 400 U.S. 455 (1971) 20, 28 McCleskey v. Zant, 499 U.S. 467 (1991) 22 Morrissey V. Brewer, 408 U.S. 471 (1972) 19 Pate v. Robinson, 333 U.S. 375 (1966) passiin Prices Bros. 00. V. Philadelphia Gear 00130., 629 F.2d 444 (6th Cir. 1980) 19 1213ng V. NeVada, 504 U.S. 127 (1992) 25 Sm'ckler v. Greene, 527 U.S. 263 (1999) 22, 23, 24 Tunney v. 01:60, 273 U.S. 510 (1927) 13, 20 V1 United States ex rel. Collins V. Welbarn, 868 F. Supp. 950 (ND. Ill. 1994) 22 United States V. Craven, 239 F.3d 91 (1st Cir. 2001) 19 United States V. Lam'er, 520 U.S. 259 (1997) 1 Federal Statutes 28 U.S.C. 455 (2012) 19 28 U.S.C. 1254(1) (2012) 4 28 U.S.C. 2254(d) (2012) 29 U.S. Const. amend. VI 4 U.S. Const. amend. XIV 5, 7 State Cases Kl'rksey V. State, 923 P.2d 1102 (Nev. 1996) 4, 25 Member-Gloria V. State, 660 P.2d 109 (Nev. 1983) 34 State v. Espinozej, 19 P. 677 (Nev. 1888) 37 State Statutes Nev. R. App. P. 28(e) 29 Nev. Rev. Stat. 34.800(2) 13 Other Brief of Amici Curiae of the States of California, Alabama, Arizona, Deleware, Nevada, New York, Oklahoma, and Virginia 1n Support of Respondent, 1997 WL 133932, at Bracy V. Gramley, 520 U. S. 899 (1997) (No.96 6133) 22 vii *2 ?34% 1 5 Petitioner Jimmy Todd Kirksey requests that this Court grant his petition for PETITION FOR WRIT OF CERTIORARI writ of certiorari and vacate his conviction for ?rst-degree murder due to the egregious actions of the trial court whose authorship of a supplemental competency report overruling the opinion of the examining did not suf?ce to resolve the outstanding issue of Kirksey?s competency to plead guilty. The trial judge, the Honorable Jack Lehman, met off-the-record with the examining who had previously found Kirksey incompetent to stand trial, the court authored a report ??nding? Kirksey competent, and the court subsequently placed the supplemental competency report in the record as having come from the Kirksey has not been able to ?nd any published or unpublished case in which a trial judge in a capital case, or any case, himself created a piece of evidence relevant to the defendant?s competence, and supplied it to counsel without acknowledging his authorship. The absence of authority on this point is precisely because no one would consider such a thing permissiblei ?a general constitutional rule already identi?ed in the decisional law may apply with obvious clarity to the speci?c conduct in question,- even though ?the very action in question has [not] previously been held unlawfu United States V. Lam'er, 520 US. 259, 271 (1997) (citation omitted). As this Court, has noted, ?[tlhe easiest cases don?t even arise Id. (citation and internal quotations omitted). This is one of those easy casesl who in (or out) of the legal profession could imagine that a trial judge could maintain a constitutional level of impartiality in a case in which he has created material evidence? None of the federal jurists who have had contact with this case have ever suggested that what Judge Lehman did in this case could be considered to be permissible. The first federal judge who received notice of the evidence proffered by Kirksey showing that Judge Lehman authored the competency report, Hon. Philip M. 1 3 3 IR 2555;)? 3687?? 2L A 5 Pro, commented that, regardless of what exactly occurred during Lehman?s contact with Dr. Master, You know, I am quite obviously concerned about any of the scenarios. I?m concerned when the while you're right it?s not ex parts, but when the contact allegedly is made between the trial judge and the without counsel being involved, I mean, the whole thing looks curious and odd to me candidly, and disturbing to me, candidly. App. 121-22. The representative for the State appeared to agree that it was appropriate to settle Kirksey?s case informally, as he represented that don?t I do not foresee any major obstacles to a reasonable disposition of this case based on the unique facts of this case.? App. 127. Judge Pro concurred that ?given the circumstances presented, compounded by what may be a competency issue of some materiality that was complicated 13 years ago, I think pursuing negotiations is a prudent thing to do.? App. 125. He further commented that ?this might be a case .. fart-?31? 4.. where it might cry out for [settlement negotiationsl.? Id. However, after this initial hearing, the State and the federal judges that have come in contact with this case have ignored the fairly obvious observations that were made by Judge Pro and by counsel for the State. The federal court at one point acknowledged that the ?most sinister interpretation of the evidence submitted by Kirksey is that the competency report was prepared by the trial judge for Dr. Master?s (the mental health expert?s) signature.? App. 31. However, the court found Kirksey?s bias claim procedurally barred because ?the court is not remotely convinced, based on Kirksey?s proffered evidence, that the trial court judge misrepresented or concealed any facts bearing on the production of the report.? Id. On appeal, one of the Ninth Circuit judges who decided Kirksey?s case, Judge Murguia, characterized Judge Lehman?s conduct as ?outrageous.? Oral Argument at 3 3 as $3 24153, V. Baker (July 6, 2015) (No. However, the court still denied Kirksey?s appeal by misclassifying the species of bias as only raising an issue of general partiality, rather than acknowledging that Judge Lehman had a more direct interest in the outcome of the case where he (1) became part of the accusatory process and (2) became a fact witness to the production of the most important piece of evidence. Judge Lehman?s authorship of the supplemental competency report set off a chain reaction that ended up with Kirksey on death row in the circumstances of a mere ?st-?ght between mutual combatants where his culpability did not rise beyond the level of manslaughter. Because Judge Lehman authored the competency report, Kirksey was deprived of his right to a competency hearing under Pate V. Robinson, 383 U.S. 375 (1966). Because Judge Lehman authored the competency report, trial counsel, who had conducted no investigation of Kirksey?s competency, acceded to his incompetent client?s wishes that he conduct no investigation, allowed him to plead guilty to capital murder, and then sat silently through a capital penalty hearing without any attempt to controvert the prosecutor?s evidence in aggravation or to present mitigation. Judge Lehman adjudicated Kirksey?s ?rst state post-conviction proceeding when counsel raised an issue of the court?s bias based on his off-the-record contact with the examining However, Judge Lehman denied Kirksey?s petition without revealing the fact that he was the author of the competency report, and he again misled Kirksey and his counsel by issuing findings of fact that ?found? that the had found Kirksey competent to stand trial. App. 601-02. Due to Judge Lehman?s conduct, the facts of Kirksey?s claims were not developed in state court, but 1 Available at 3 303761 3 4/493: required extensive formal discovery and the expert services of a questioned document examiner in federal habeas proceedings to prove that the court authored the competency report. Kirksey requests that this Court grant his petition for writ of certiorari to correct this fundamental miscarriage of justice. OPINIONS BELOW The Ninth Circuit?s opinion af?rming the district court?s denial of the petition (App. 2'6) is unpublished but available at 2015 WL 4719580. The district court?s orders denying the petition and dismissing Kirksey?s claims as procedurally barred (App. 7-54) are unreported but available at 2013 WL 5201974, 2012 WL 2838653, and 2012 WL 1019172. The Nevada Supreme Court?s 2009 opinion af?rming the state court?s denial of relief (App. 5575) is unreported but available at 2009 WL 2601577. The Nevada Supreme Court?s 1996 opinion af?rming the state court?s denial of relief (App. 88-104) is reported at Kirksey V. State, 923 P.2d 1102 (Nev. 1996). JURISDICTION The Ninth Circuit?s opinion was issued'on August 10, 2015, and a petition for rehearing was denied on October 2, 2015. On December 28, 2015, Justice Kennedy extended the time to file a petition for writ of certiorari until and including February 29, 2016. This Court has statutory jurisdiction under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISIONS The Sixth Amendment to the United States Constitution provides! In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 341/4? - 39$ ma 6 The Fourteenth Amendment to the United States Constitution provides, in pertinent part1 No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws. STATEMENT OF THE CASE A. Facts of the Homicide Offense Eva Kearns was a prostitute and Michael Foxx, the decedent, was her boyfriend and pimp, and the two of them were staying at the Del Mar motel in Las Vegas, Nevada. On May 3, 1988, Kearns met with Kirksey and his co-defendant, Jerry Jordan, while she was walking down the street. Kearns informed Kirksey and Jordan that Foxx had physically abused her and that she wanted him out of her hotel room. Kirksey and Jordan followed Kearns back to the Del Mar. When the three of them arrived at Kearns? hotel room, Kirksey entered the room and confronted Foxx, and the two of them engaged in a ?st-?ght. At the grand jury hearing, the medical examiner, Sheldon Greene, M.D., testi?ed that there was some bruising on the right side of Foxx?s head, but other than that he had no external injuries. App. 282-83. Greene testi?ed that Foxx died of a hemorrhage based on a pre-existing defect, a "weak spot,? in his cerebral artery on the left side of his head. App. 284. Greene testi?ed that he ultimately ruled Foxx?s death a homicide, but he also acknowledged that individuals with a cerebral defect like Foxx may die spontaneously or as a result of high blood pressure, and that Foxx had cocaine in his system. App. 284-87. Kearns testified before the grand jury that after Kirksey hit Foxx he fell down, and that Kirksey and Jordan left the motel. She also testi?ed that Fox was alive and staring at her while he was lying on the ?oor after Kirksey and Jordan left. Cf 3 303-761 Mega - 3 .1124 ?33% Jordan testi?ed at the ?rst state post-conviction hearing that Foxx was still alive when they left the room. App. 56263. B. Pre'Trial Proceedings in this Manslaughter Case Kirksey and Jordan were charged with open murder but the charges were later dismissed for insuf?cient evidence. App. 563. The charges were not pursed again until the California authorities contacted Kirksey while he was being treated at the Riverside General Hospital, and he informed them that he wanted to confess to a murder in Nevada so that he could get the death penalty. Jordan was tried before Kirskey. At his trial, the prosecutor argued that Kirksey?s culpability amounted to nothing more than manslaughter. App. 248. In closing argument, the prosecutor argued that Jordan ?goes up to the room and he knocks on the door and this is literally his participation in this manslaughter.? App. 249. He argued that Jordan ?took Mr. Kirksey with him, Jimmy Kirksey. When they got in the room, things got out of hand.? App. 250. The ?unlawful act is battery, and just as a result of that, he/ died. There was no intent to kill, just to beat [Foxxl.? App. 248. The prosecutor acknowledged that ?the black [on Foxx] sure doesn?t look like it equals death of another human being, but that is what happened.? App. 252. Jordan was ultimately acquitted of the charges. However, the trial attorney who represented Kirksey, George Kelesis, did not attend Jordan?s trial or follow up on his original intent to obtain the transcripts of the trial. C. Competency Proceedings After interviewing Kirksey, trial counsel learned that Kirksey would not consider a guilty plea to a lesser included offense because he wanted to receive the death penalty. Trial counsel therefore moved the trial court for a competency evaluation on the ground that ?after numerous discussions with Defendant, Af?ant g) 3 4,4515 has certain reservations as to whether the Defendant is of an unsound mind.? App. 344. Trial counsel did not conduct any investigation of Kirksey?s competency to assist the two who were appointed to conduct competency evaluations. While counsel received notice from hospital records that were provided in discovery by the prosecutor that Kirksey had a history of atypical App. 133, 159, counsel did not request the rest of Kirksey?s records from the hospital to ascertain Kirksey?s mental health history. If he had obtained those records, he would have learned that Kirksey was involuntarily hospitalized on ?ve occasions between September 1987 and December 23, 1988, due to drug organic brain and cocaine and alcohol poisoning. App. 140-201. During his hospitalizations, Kirksey experienced visual and auditory hallucinations, seizures, suicidal ideation, severe headaches, and extreme paranoia; he was striking his head against the wall, and pacing the room afraid that people were going to murder him by chopping his head off; he was labeled ?gravely disabled? by medical personnel; he was placed in five point restraints; and he was medicated with a powerful anti- Haldol. Id. Trial counsel also failed to conduct any other investigation of Kirksey?s family history of suicide or of his mental health. Kirksey had a family history of suicide on the paternal side of his family as his father committed suicide in 1981, after several previous suicide attempts. App. 224; 226-31. Kirksey?s brother and paternal aunt also committed suicide. Kirksey reported that he was medicated with the anti? drug Thorazine while awaiting trial in the jail. App. 236. Kirksey was evaluated by a in federal habeas corpus proceedings and diagnosed with moderate brain damage, organic personality disorder, and poly- 5% 3 4cm- substance abuse. In 2006, Kirksey was found to be intellectually disabled. App. 7 24' 25.2 All of Kirksey?s myriad mental health issues described above were unknown to the Nevada court system that accepted Kirksey?s guilty plea to capital murder and sentenced him to death (on the facts of a case that only rose to the level of manslaughter), because trial counsel conducted no investigation whatsoever of Kirksey?s mental health in order to litigate the issue of his competence. On May 23, 1989, Franklin Master, M.D., a interviewed Kirksey at the Clark County Detention Center. In the interview, Kirksey informed Master that he confessed to murdering Foxx because he did not want to spend his life in prison ?and that he wants to be executed rather than to face life in prison without the possibility of parole.? App. 219. During the interview, Master noted physiological signs of clinical depression in Kirksey including the fact that he ?appeared to have a de?nite depressive affect with slowing and to verbalize both hopelessness and helplessness.? Id. Dr. Master concluded that Kirksey was incompetent to assist counsel in his defense. Id. at 220. On June 21, 1989, the trial court, the Honorable Jack Lehman, held a status check on the reports of Dr. Master and Jack urasky, M.D., which were con?icting on whether Kirksey was incompetent.3 Trial counsel moved the court for Kirksey to be sent to Lakes Crossing so that he could be evaluated at a facility. App. 206. The trial court declined to order that Kirksey be sent to Lakes 2 Kirksey?s death sentence was ermanently set aside as a result of this ?nding. SeeAtkI'ns V. ngihia, 536 U.S. 304 2002). 3Dr. urasky also had no background information on Kirksey and relied solely on an interview with him. Dr. urasky simply accepted Kirksey?s suicidal bluster as accurate and concluded that Kirksey considered himself as a sort of ?Big Dirty Black Harry.? App. 217. 8 . 2% ?re -. :3 3 855$ [363?? c? Crossing for evaluation, but did indicate that it did not believe that Dr. Master had answered each of the relevant prongs of competency, so the court stated that ?what I?m going to do is contact Dr. Master and tell him that I want a clarification of his report. And if it?s still not clear or if he really disagrees with Dr. Jurasky, then we?re going to appoint a third and let him break the log jam.? App. 207 On June 23, 1989, the trial court sent a letter to defense counsel and the State which represented that enclosed was ?a supplemental report I received from Dr. Master since you were both in court regarding the above referenced matter on June 21, 1989.? App. 233 (emphasis added). In pertinent part, the supplemental report, dated June 22, 1989, stated that ?Mr. Kirksey is competent to assist his attorney in his own defense during a trial.? App. 222. Dr. Master?s supposed change in his opinion of Kirksey?s competency was not based on any intervening factual information. Judge Lehman did not disclose to counsel that he himself was the author of the supplemental competency report. The report itself purported on its face to be written by Dr. Master, not Judge Lehman. 599 App. 222. At a subsequent hearing, the trial court represented that received the reports? and ?they indicate that everything is ?ne, that Mr. Kirksey understands the nature of the charge against him, and that he?s capable of assisting counsel in his own defense.? App. 212. D. Plea and Sentencing Proceedings After receiving the supplemental competency report, trial counsel abandoned any pretense of representing Kirksey?s legal interests and allowed him to plead guilty without any negotiations and to go to a capital penalty hearing without any effort to counter the aggravating evidence or to present mitigation. Trial counsel did not conduct any investigation of the case or adopt an adversarial posture during any of the proceedings. a) 3 same was? Mag as On July 13, 1989, Kirksey decided to write a letter to Judge Lehman insulting him and confessing to false aggravating facts in order to secure a death sentence. App. 239-40; App. 660. He asked his cell mate, Donald Savage, to ?write him a letter that would get him the death sentence.? App. 660. Savage complied, writing a letter insulting the judge, id. at 1531, and challenging the ?old fart? to kill Kirksey if he ?had the heart to do that.? App. 23940. On October 2, 1989, Kirksey pleaded guilty to capital murder Without negotiations from the State and against the advice of counsel. At the capital penalty hearing, when issues of Kirksey?s competency were raised by one of the members of the three-judge panel, the prosecutor informed the panel that ?his honor, Judge Lehman, ordered to examine the defendant, two of them, and they reported back to the court and they found him to be fully competent to stand trial, to assist counsel.? Judge Lehman said nothing about his authorship of the supplemental competency report in response to these representations. The panel subsequently fixed Kirksey?s penalty at death. E. Direct Appeal For the direct appeal, Judge Lehman appointed the Clark County Public Defender?s Office, which had a conflict of interest because it had represented Kirksey?s co-defendant, Jerry Jordan, in his murder trial, in which he was acquitted of all charges.4 Appeal counsel was so grossly ineffective that he failed to order the June 21, 1989, transcript, and to include it with the record on appeal, which revealed trial counsel?s inexplicable acquiescence to Judge Lehman?s desire to contact Dr. 4 Roger Hillman was the attorney from the public defender?s of?ce who did the direct appeal for Kirksey. Hillman personally represented Kirksey's (so-defendant, Jerry Jordan, at trial where Hillman argued that Kirksey was the culpable party. 10 . f4- 3 Master off the record. The opening brief ?led on Kirksey?s behalf contained one claim and was seventeen pages in total length. F. First State Post-Conviction Proceeding In the ?rst state post-conviction proceeding, Kirksey argued that Judge Lehman was biased based on Lehman?s off-the'record contact with Dr. Master regarding his ?nding of incompetency. Kirksey further argued that Lehman should have been recused during the post-conviction proceedings based on his partisan behavior during the evidentiary hearing. An evidentiary hearing was conducted on February 1, 1993. Dr. Master testi?ed at the hearing that he prepared the May 23, 1989, report stating that Kirksey was incompetent; that he subsequently had contact with the court regarding the ?ve questions that were stated in the supplemental competency report; and that he was never contacted by defense counsel after that point about the change in his opinion. App. 546-48. When Dr. Master was asked about what expert opinion he would have given if he had been contacted by trial counsel, he testi?ed that it was his opinion that Kirksey was not competent to proceed to the sentencing hearing. App. 549?50. Judge Lehman issued ?ndings of fact and conclusions of law denying Kirksey?s petition that did not rule on the issues of his bias. App. 597-603. On appeal, the Nevada Supreme Court held that ?Judge Lehman?s ex parte communications with Dr. Masters [sic] was inappropriate,? but concluded that ?there is no evidence that the communication resulted in bias or prejudice on the part of the judge App. 100. The court further admonished Lehman for his partisan behavior during the post- conviction proceedings, App. 102-04, but found that his conduct was harmless. What the Nevada Supreme Court did not know during the ?rst post-conviction proceeding, because Judge Lehman continued to conceal the material facts that were within his 11 "jg?f? 3 3 stew own peculiar knowledge, is that Judge Lehman himself was the author of the supplemental competency report. G. Federal Habeas Proceedings In August of 2000, an attorney with the Federal Public Defender began to suspect that Judge Lehman may have been the author of the supplemental competency report on the basis that the report bore a typed signature of the doctor spelled ?Masters? rather than ?Master.? App. 222. No one, including the doctor, had noted that fact in the previous proceedings. Those suspicions were con?rmed on September 20, 2000, when a questioned document examiner, Hans Meyer Gidion, produced a report concluding that the supplemental competency report was not produced on Dr. Master?s typing instrument, but was consistent with Judge Lehman?s typing instrument. App. 607-08. Approximately one month after discovering this information, Kirksey ?led a renewed motion for leave to conduct discovery which alerted the district court to this information and he requested discovery in order to further corroborate that claim. Extensive formal discovery ensued based upon the district court?s orders which were intended to proceed in a slow and deliberate manner given the seriousness of the judicial bias allegations against Judge Lehman who was still a sitting state court judge. App. 117-120. H. Second State Post-Conviction Proceeding In the second state post-conviction proceeding, Kirksey raised all of the claims that are before the Court. At the state evidentiary hearing in 2006, Dr. Master testi?ed and when questioned by counsel, the State, and the trial court, he eventually acknowledged that his initial report was irreconcilable with the supplemental competency report, and he resolved that con?ict by standing by his original opinion that Kirksey was incompetent at the time of his guilty plea. App. 630-35. At the same hearing, the State stipulated to the conclusions contained in Gideon?s expert 12 :1 2476? 53 [3 03%: report that the supplemental competency report was produced on Judge Lehman?s typing instrument. App. 617. On June 12, 2006, the court issued a minute order ?nding that Kirksey was intellectually disabled and further ?nding that Dr. Master?s opinion was that Kirksey was incompetent, but the court nevertheless denied relief on the merits of the judicial bias claim. App. 718-19. The Nevada Supreme Court held that all of Kirksey?s claims were procedurally barred pursuant to the ?ve-year laches bar of Nev. Rev. Stat. which meant that his time to raise his claims expired on December 18, 1996, while his ?rst post-conviction appeal was still pending. App. 61-73. Moreover, the court held that Kirksey could not prevail on his claim of judicial bias because he could not show that Judge Lehman?s authorship of the supplemental competency report affected Dr. Master?s opinion. App. 69. The court made contradictory ?ndings that ?Dr. Master testi?ed that the second [competency] report re?ected his ?ndings,? but also found that ?Dr. Master testi?ed that he believed appellant was incompetent due to a suicidal ideation.? App. 66. I. Post-Exhaustion Federal Habeas Proceedings The federal court did not render a decision on the merits of any of Kirksey?s claims of judicial bias. As to the claim of bias that was raised in the ?rst state post- conviction proceeding, the court re-characterized the claim as asserting only Kirksey?s absence from the proceedings, App. 46, and later denied the absence claim on the merits. App. 19-22. As to the claim of bias that was raised in the second state post-conviction proceeding, the court held that the claim was procedurally defaulted because Judge Lehman did not ?intentionally misrepresentU or conceall] the manner in which the report was produced? ?subsequent to [the] hearing on June 28, 1989.? App. 43-44. But see pp. 22-26, Mfr-a. Based on the same reasoning, the court refused to consider the merits of Kirksey?s claims that Judge Lehman should have ordered a 13 30?5?7cik 3 3 Law/as competency hearing; that Kirksey was incompetent to plead guilty; and that trial counsel was ineffective in failing to investigate and litigate the issues of Judge Lehman?s bias and of Kirksey?s incompetency. App. 44-45. After the federal court issued its procedural order, Kirksey moved the court for reconsideration based on this Court?s intervening decision in Martinez V. Ryan, 132 S. Ct. 1309 (2012). The court denied Kirksey?s motion for reconsideration without permitting factual development under Martinez. App. 28-33. In its ?nal order, the federal court rejected Kirksey?s ineffective assistance of direct appeal counsel claim because Kirksey did not prove that he was incompetent at the time that he entered his guilty plea. App. 17-18, 20. With respect to Kirksey?s claim of ineffective assistance of trial counsel, the court held that the Nevada Supreme Court?s holding - that trial counsel was not ineffective in failing to conduct any investigation - - was an unreasonable application of clearly established federal law. App. 15-16. However, the court further held that Kirksey could not show prejudice because he would have pleaded guilty even if counsel had conducted investigation in the case. App. 16. The federal court did not grant a certi?cate of appealability as to any issues. App. 25. J. Decisions of the Ninth Circuit Court of Appeals On April 14, 2014, a procedural panel of the Ninth Circuit certi?ed seven constitutional claims and all of the procedural rulings related to those claims that were briefed in Kirksey?s application for a certi?cate of appealability. On August 10, 2015, a panel of the Ninth Circuit issued an unpublished decision affirming the federal district court?s orders and judgment denying Kirksey?s petition. The panel decision af?rmed the district court?s ?nding of procedural default as to Kirksey?s claims of judicial bias, trial court error in failing to grant a competency 14 3 :9 MR ME: 3925 8 5 hearing, ineffective assistance of trial counsel in failing to investigate and litigate the issue of Kirksey?s competency, and a claim that Kirksey was incompetent to plead guilty on the grounds that the supplemental competency report ?was available to Kirksey?s trial counsel well before Kirksey pleaded guilty, affording counsel plenty of time to explore any doubts about its authorship while the original proceedings were ongoing.? App. 3. The panel rejected Kirksey?s procedural allegations under Martmez, because even ?if post-conviction counsel could have demonstrated that the state trial court wrote the report for Dr. Master?s signature, that fact alone would not sustain a claim that the court was biased against Kirksey.? App. 3. The panel did not consider whether Kirksey could excuse the state procedural defaults of his remaining ineffective assistance of counsel claims under Martinez. The panel rejected Kirksey?s remaining claims of ineffective assistance of trial counsel because ?Kirksey has presented no evidence to suggest that he would have insisted on going to trial if counsel had mounted a more vigorous investigation of the charge against Kirksey.? App. 4. The court rejected Kirksey?s claim of ineffective assistance of counsel on direct appeal because ?Kirksey was never deemed incompetent under the appropriate controlling standards for determining competency? so therefore he could not ?show that he was prejudiced by the communication? between Judge Lehman and Dr. Master. App. 5-6. The panel did not consider Kirksey?s claim that direct appeal counsel should have objected to Judge Lehman?s failure to grant a competency hearing. On October 2, 2015, the panel denied Kirksey?s petition for rehearing and the full court declined to hear the appeal en banc. This petition for writ of certiorari follows. 15 K.) 2y 9 330 Mares REASONS FOR GRANTING THE PETITION This Court?s precedents reveal that there are very few circumstances in which the bias of a court will result in a violation of the Due Process Clause. It is very rare for a state or federal judge to become so personally involved in a criminal case that recusal is constitutionally-required, but when it does happen the problem is too' often not recti?ed when elected state court judges have to sit in judgment of one of their own. Such is the case here. The Nevada Supreme Court rejected Kirksey?s argument that Judge Lehman should have recused himself based on its ?nding that Lehman could only be biased if his actions affected Dr. Master?s opinion of Kirksey?s incompetency. The state court?s decision failed to apply this Court?s precedents holding that the bias of the tribunal constitutes structural error, regardless of how the court?s bias affects the outcome of the proceedings. The Ninth Circuit panel that decided Kirksey?s case did not af?rm the judgment based on the state court?s reasoning, but its decision was also far off the mark because the panel did not correctly apprehend the species of judicial bias that occurred in this case. Instead of deciding whether the state court?s ruling was contrary to this Court?s precedents, the Ninth Circuit instead believed that Judge Lehman?s actions only presented an issue of general bias, rather than demonstrating that the court had a more direct stake in the outcome. The fact that the court produced material evidence and became a fact witness to his contact with the examining and his authorship of the supplemental competency report presents the type of situation where the court became too personally involved in the case to accept Kirksey?s guilty plea and to sit on the three-judge panel that sentenced him to death. This Court recently granted certiorari in a capital case to determine whether a district attorney?s personal involvement in approving the decision to seek the death 16 . . :1 . 9 afg? penalty disquali?ed him from adjudicating the case as a state supreme court justice twenty years later. See Wilhams V. Pennsy1vama, No. 15 5040. The petitioner in Williams was supported by eight organizations who ?led briefs as amicus curiae including the American Academy of Appellate Lawyers, the American Bar Association, the American Civil Liberties Union, the Brennan Center for Justice, the Constitutional Accountability Center, the Ethics Bureau at Yale, Former Appellate urists, and Former Judges with Prosecutorial Experience. Amici all concur that the personal involvement of a judge in a criminal case requires recusal under the Due Process Clause. Kirksey?s case presents an excellent procedural vehicle for this Court to re' af?rm the fundamental tenets of its case law governing claims of judicial bias and to correct a fundamental miscarriage of justice where the trial court?s actions actually affected the outcome of the proceedings. There can be no dispute that the court?s actions deprived Kirksey of his constitutional right to a competency hearing,bu_t_r_g courtZ statebor federal, has addressed his claim that a competency hearing was" 13,331;ch Judge Lehman? authorship of the competency report also led trial counsel to acquiesce in his incompetent client?s desire to plead guilty to capital murder and to enlist the State?s assistance in committing suicide. Finally, the court?s misleading representations and concealment of material facts throughout the state proceedings deprived Kirksey of the opportunity to fully and fairly litigate his constitutional claims in the initial state post conviction proceeding which directly led to the state court? subsequent ruling that Kirksey? claims were procedurally barred. This Court should grant certiorari because the state and federal courts? decisions in 8 case so far departed from the accepted and usual course of judicial proceedings as to require this Court?s intervention. 17 . A. The Ninth Circuit Misclassified the Species of Judicial Bias that Occurred in this Case and Therefore Failed to Determine Whether an Appearance of Impropriety Violated the Due Process Clause. The Ninth Circuit?s decision failed to correctly apprehend the species of judicial bias that exists in Kirksey?s case, which means that the court did not consider whether an appearance of impropriety existed that violated the Due Process Clause. Instead, the court applied the ?extreme case? standard from this Court?s decision in Aetna Life Ins. 00. V. La V01'e, 475 U.S. 813, 821 (1986), which pertains to ?allegations of bias and prejudice on general basis? because ?the traditional common-law rule was that disqualification for bias or prejudice was not permitted.? Id at 2021.5 Accordingly, ?matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters of legislative discretion.? Id. (citing Tumey V. 01110, 273 U.S. 510, 523 (1927)). The state record in this case is ?lled with examples of bias and partiality by Judge Lehman that must be characterized as ?extreme,? as Judge Lehman?s actions during the first state post-conviction proceeding were so partisan that he was admonished by the Nevada Supreme Court for his conduct, see Kirkse? 923 P.2d at 1116-19, App. 101-04; however, those circumstances were never the factual bases for Kirksey?s constitutional claim. Instead, the bias that exists in Kirksey?s case is of the type recognized in La V01'e where Judge Lehman ?had a more direct stake in the outcome of the case.? Lat/01's, 475 U.S. at 821. Judge Lehman?s actions of meeting with Dr. Master off-the'record and authoring the supplemental competency report reversing the expert?s opinion most directly resembles the actions of the trial court in In re Murchison, 349 U.S. 133 (1955), where the court became part of the accusatory process; gained personal 5 In La vars, this Court did not ?nd a due process violation when a justice of the state supreme court expressed ?general frustration with insurance comp ames? durmg a deposition. Id. at 821. 18 . J??gas knowledge regarding the case that could not be controverted by other witnesses; personally participated in the production of the most important piece of evidence in the case; and did so in circumstances where no record was created so that a reviewing court could assess what transpired. See id. at 13739. In such circumstances, the issue is not limited to the misconduct by Judge Lehman per se as the panel believed, but includes the inability of the average jurist in such circumstances to separate himself or herself from what occurred during the off-the-record contact with the expert.6 Every federal court of appeals that has addressed a similar, although not nearly as egregious, situation where the trial court met with an expert witness on a material matter in the case has held that recusal was required under 28 U.S.C. 455.7 These authorities under section 455 are relevant both because the standard for recusal is coterminous with the ?constitutional dimensions? of the Due Process Clause, LiJjeberg V. Health Services Acquisition Corp, 486 U.S. 847, 865 n.12 (1988), and because they demonstrate that the Ninth Circuit?s decision in Kirksey?s case is an outlier that demands correction. In addition, the Ninth Circuit?s decision does not indicate that it gave any consideration to Kirksey?s letter insulting Judge Lehman and challenging the ?old fart? to kill him if he ?had the heart to do that.? App. 240. Kirksey?s letter included the ?highly personal aspersions, even ?fighting words?? that this Court has recognized In In re Murchison, there were no allegations of bias or impropriety by the trial court, and the secret grand jury procedure was expressly authorized by state law. See id. at 139?42 (Reed, ., dissenting, joined by Minton and Burton, .J see aiso il/Iori'issey 31's 408 U.S. 471, 486 8: 11.14 (1972) (bias ?is not an issue limited to bad motivation," but prevents parole ?officer directly involved in making a recommendation" for parole revocation from being ultimate decision maker). See erg, in re Ifensington Int?i Ltd, 368 F.3d 289, 294-95, 297-99 {3d Cir. 2004); United States v. Craven, 239 F.3d 91, 101-03 (let Cir. 2001); Edgar V. EL, 93 F.3d 256, 260-62 (7th Cir. 1996); Prices Bros. Co. v. Gear Corn, 629 F.2d 444, 447 (6th Cir. 1980). 19 are the type of insults that ?are apt to strike ?at the most vulnerable and human qualities of a judge?s temperament.? Mayberry V. 400 U.S. 455, 466 (1971). The effect of Kirksey?s letter was so signi?cant that Judge Lehman referred to it during the state post-conviction proceeding. App. 367. At the evidentiary hearing in 2006, Judge Lehman did not recall the facts of the proceedings but retained a vivid recollection of the contents of Kirksey?s letter to him. App. 611-12. The Ninth Circuit did not rely upon the reasoning of the state courts which rejected Kirksey?s bias claim by holding that any error was harmless. Speci?cally, the Nevada Supreme Court held that Judge Lehman was not biased if Dr. Master adopted the competency report that Lehman authored. App. 6869: App. 85. Kirksey argued that the state court?s decision was contrary to this Court?s decision in Tunney V. Ohio, 273 U.S. 515, 532-34 (1927). In similar circumstances, the Seventh Circuit Court of Appeals has held that state court decisions applying harmless error principles to claims of judicial bias are contrary to Tums-y as such bias constitutes structural error.B ?The issue is Whether the judge was biased, regardless of how his bias may have manifested itself, or failed to manifest itself, in any defendant?s case.? Cartalino V. Washington, 122 F.3d 8, 10 (7th Cir. 1997). The fact that the Ninth Circuit did not acknowledge or discuss the state court?s decision in Kirksey?s case is a strong indication that the ruling was not defensible. Pursuant to Tumey, the Nevada Supreme Court?s decision was contrary to longstanding and clearly established federal law. The totality of the circumstances above demonstrate that Judge Lehman became ?so enmeshed in matters involving [Kirksey] as to make it appropriate for another judge to sit.? Johnson V. WESs'issippi', 403 U.S. 212, 215-16 (1971). Such a See, 9g, 19-91mm v. McCaugh?y, 398 F.3d 955, 960-61 (7th Cir. 2005); Cartaljno v. Washington, 122 F.3d 8. 10 (7th Cir. 1997). 20 a circumstances offered a possible temptation to the average jurist not to hold the balance nice, clear and true between Kirksey and the State. The resulting appearance of impropriety precluded Judge Lehman from accepting Kirksey?s guilty plea to capital murder and participating in the decision of the three-judge panel that sentenced him to death. 1. The Ninth Circuit?s Decision Finding Kirksey?s Bias Claim Procedurally Defaulted Failed to Consider the Presumption of Regularity that Attends to the Actions of the Trial Court, the Misleading Representations of Judge Lehman and His Concealment of Material Facts Throughout the State Proceedings, and the Extensive Investigation and Formal Discovery that Occurred in Federal Habeas Corpus Proceedings Before Kirksey Could Assert that Judge Lehman Authored the Supplemental Competency Report. The Ninth Circuit?s ruling that Kirksey?s claims were procedurally defaulted ignores the presumption of impartiality that attends the actions of the trial court, as well as Judge Lehman?s (1) misleading representations at trial and (2) his subsequent failure to disclose material facts within his personal knowledge when adjudicating a claim of bias regarding his off-the'record contact with Dr. Master. The panel also failed to acknowledge the extensive investigation and expert witness preparation that took place in federal habeas corpus proceedings before Kirksey was in a position to assert in good faith that Judge Lehman was the author of the supplemental competency report. The reactions of the federal judge and the representative for the State at the time that they ?rst received notice of the evidence showing that Judge Lehman authored the competency report, App. 116-28, further shows that prior state counsel cannot be blamed for any failure to investigate and develop the facts in state court. This Court has previously addressed allegations of judicial bias in circumstances where the facts were not raised or developed in state court and where the evidence showing bias was only uncovered for the ?rst time in federal habeas 21 3 761% corpus proceedings. In Bracy V. Gramley, 520 U.S. 899 (1997), this Court reversed the judgment of the Seventh Circuit Court of Appeals and granted the petitioner discovery to develop the facts of a judicial bias claim that had never been presented in state court. See United States ex rel. Collins V. Wellborn, 868 F. Supp. 950, 991 (ND. 111. 1994). In Brawl, the attorneys general of several states ?led an amicus brief with the Court urging af?rmance because the ?factual predicates of that claim were never developed in state court proceedings.? Brief of Amici Curiae of the States of California, Alabama, Arizona, Deleware, Nevada, New York, Oklahoma, and Virginia in Support of Respondent, 1997 WL 133932, at Bracy V. Gramley, 520 U.S. 899 (1997) (No. 96-6133). However, this Court did not address the procedural arguments of amici even though they could have ordinarily been considered by a federal court as part of its discretion to grant or deny the discovery sought by the petitioner. The presumption of regularity that attends judicial proceedings that was acknowledged in Bracyis the same reason that Kirksey can show ?cause? to overcome any purported state procedural default of his constitutional claims. ?Ordinarily, we presume that public of?cials have ?properly discharged their official duties.?? Bracy, 520 U.S. at 909 (citations and internal quotation omitted). This Court has acknowledged in analogous circumstances involving the suppression of material evidence by the prosecution that the law regarding procedural default must accommodate the unique position of the prosecutor to see that justice is done. Eg, Banks V. Dretke, 540 U.S. 668, 696 (2004). In such circumstances, ?a defendant cannot conduct the ?reasonable and diligent investigation? mandated by [McCleskey V. Zant, 499 U.S. 467 (1991)] to preclude a ?nding of procedural default when the evidence is in the hands of the State.? Striwkr?er V. Greene, 527 U.S. 263, 287-88 (1999). What this Court said regarding the special role of a prosecutor in our system of justice, and the right of the defendant and his counsel to rely upon their 22 ?3 15% . 3 K/K??ey- gal-75f representations that exculpatory evidence has been disclosed, is even more applicable when the state actor is the trial court. Paraphrasing Banks, a rule declaring that the trial court may hide and mislead, defendant must seek, is not tenable in a system constitutionally bound to accord defendants due process. This Court should grant certiorari in the instant case to make express What was implicit in Bracy and to harmonize its procedural default jurisprudence in the context of judicial bias claims with the principles that were expressed by the Court in Banks and Stir'ckjer. It is evident that that the Ninth Circuit failed to accord any special signi?cance to Judge Lehman?s materially misleading representations at trial and to his silence during the. ?rst state post-conviction proceeding when a claim of judicial bias was raised concerning his off-the-record contact with Dr. Master. But cf L?jeberg V. Health Serv. Acquisition Corp, 486 US. at 868 (?by his silence, [the trial court] deprived respondent of a basis for making a timely motion for new trial and also deprived it of an issue on appeal?). The court rejected Kirksey?s argument because ?the [supplemental competency] report was available to Kirksey?s trial counsel well before Kirksey pleaded guilty, affording counsel plenty of time to explore any doubts about its authorship while the original proceedings were ongoing.? App. 3. What the Ninth Circuit failed to acknowledge is that trial counsel did not need to have ?any doubts? about the authorship of the supplemental competency report given (1) Judge Lehman?s cover letter to counsel stating that he ?received? the report from Dr. Master; (2) the language of the competency report that was written in ?rst person and signed by Dr. Master; and (3) Judge Lehman?s subsequent statement on the record that he ?received the reports? from the experts and ?they indicate that everything is fine, that Mr. Kirksey understands the nature of the charge against him, and that he?s capable of assisting counsel in his own defense.? App. 212. Post-conviction counsel was entitled to the same reliance, see Smut-Mei; 23 3 30757q 4/4333 527 U.S. at 284, and such reliance was only con?rmed by Judge Lehman?s subsequent ?ndings of fact that ?lbloth doctors eventually made speci?c ?ndings that Kirksey was fully competent to stand trial and assist in his own defense.? App. 602. The ?notice? that the panel believed that Kirksey had, based on the fact that he had the supplemental competency report in his possession, is not suf?cient to fault ?rst state post-conviction counsel for failing to suspect that Judge Lehman was the actual author of the competency report. Kirksey and prior state counsel were not required to disbelieve Judge Lehman?s representations and to conduct an investigation to show that he was author of the supplemental competency report in such circumstances. The Ninth Circuit also failed to recognize the investigation and expert services that were required before Kirksey could assert his judicial bias claim in federal habeas corpus proceedings. As noted by the federal court, Kirksey did not assert the instant judicial bias claim until after ?extensive discovery proceedings related to the trial court?s role in the creation of a evaluation, including several depositions and the retention of a questioned documents examiner App. 9. Before obtaining the expert services of a questioned document examiner, Kirksey had no good faith basis for asserting that Judge Lehman authored the supplemental competency report other than mere speculation, which was ?unlikely to establish good cause for a discovery request on [state] collateral review.? 527 U.S. at 286. Moreover, to avoid a ?nding of procedural default, state post-conviction counsel would have had to seek expert funding from Judge Lehman to prove something that the judge himself was not willing to admit during the state post-conviction proceedings, when he was adjudicating the issue of his own bias. The Ninth Circuit also failed to apprehend or consider the facts surrounding the ?rst state post-conviction proceeding that prevented Kirksey from receiving a full and fair opportunity to investigate and plead his constitutional claims. Judge 24 3 3 6:379 Lehman appointed post-conviction counsel on February 2, 1992, and issued an execution warrant six days later, setting Kirksey?s execution for March 9, 1992. Post- conviction counsel was thus forced to review the record, conduct an investigation, and raise all available constitutional claims while working under the threat of an execution warrant set for less than one month from the date of her appointment. On February 21, 1992, counsel moved for funds for an investigator, and Judge Lehman denied the motion three days later stating that don?t think that anything that happened in his prior life, at this point, when he was young, is of any relevance here.? App. 381. During the evidentiary hearing On the petition, Judge Lehman berated post-conviction counsel; called his own law clerk and secretary as witnesses to manufacture a waiver argument based on counsel?s purported failure to object to the limitations on the hearing; refused to consider relevant witnesses and exhibits; and made factual ?ndings that ?in an updated [competency] report, Dr. Master stated that Kirksey was fully competent to proceed.? App. 601-02. The Ninth Circuit?s decision failed to acknowledge or consider how these factual circumstances prevented Kirksey from investigating and developing the factual bases of his bias and competency claims. Finally, the Ninth Circuit failed to acknowledge the fact that Judge Lehman misled not just and his counsel but also the Nevada Supreme Court and the representative for the attorney general?s office. The Nevada Supreme Court did not notice the subtle misspelling of Dr. Master?s last name in the supplemental competency report. See V. State, 923 P.2d 1102, 1114 (Nev. 1996).9 When the representative for the State found out that Judge Lehman authored the competency 9 Cf 8:1;ng V. Nevada, 504 US. 127, 130 (1992) (referring to ?Dr. Franklin Master? without an in his last name). 25 - KWAS 1 3 j? A go? report (after receiving notice of a report proffered by Kirksey from a questioned document examiner, App. 604-08), he stated that Your Honor, our response is somewhat unique in this case. To be very candid, the research that the respondent - the petitioner did in this case was pretty high quality work, and I had not recognized when I saw that second report from Dr. Masters [sic] I didn?t notice that the name was misspelled, and that's kind of a glaring error. App. 116. The federal judge at the time, the Honorable Philip M. Pro, declared that ?this might be a case where it might cry out? for settlement negotiations after Kirksey proffered the expert report from the questioned document examiner. Id. at 125. The statements of the federal court and the representative for the State are inconsistent with the Ninth Circuit?s ruling that prior state counsel should be faulted for any failure to investigate the authorship of the supplemental competency report. In such circumstances, the Ninth Circuit erred by finding Kirksey?s claims procedurally barred. 2. The Ninth Circuit?s Rejection of Kirksey?s Ineffective Assistance of Counsel Claims Under Martinez v. Ryan, 132 S. Ct. 1309 (2012) was Based Upon the Court?s Misclassificatien {Cf the Species of Judicial Bias that Occurred in Kirksey?s ase. Assuming that ?rst state post-conviction counsel was remiss in failing to suspect that Judge Lehman was the author of the supplemental competency report, counsel was ineffective in failing to investigate and litigate meritorious claims that trial and direct appeal counsel were ineffective in failing to raise constitutional claims of judicial bias. In the first state post-conviction proceeding, counsel raised a claim that Judge Lehman?s off-the-record contact with Dr. Master required recusal under the Due Process Clause. However, counsel did not notice the subtle misspelling of Dr. Master?s last name in the competency report (spelled as ?Masters? rather than ?Master?), App. 221-22, and did not seek expert funding from Judge Lehman for the 26 1% K5 Ely retention of a questioned document examiner to prove that Lehman was the author of the report. Effective state post-conviction counsel would have investigated this issue and raised claims of ineffective assistance of trial and direct appeal counsel for failing to investigate the circumstances surrounding the creation of the supplemental competency report and for failing to move to recuse Judge Lehman from the case on due process grounds. First state post-conviction counsel raised a claim that direct appeal counsel was ineffective in failing to engage in the fundamental task of ordering the pretrial transcripts of the proceedings before Kirksey?s entry of a guilty plea in order to assert a claim of judicial bias based on Judge Lehman?s off-the-record contact with Dr. Master. The Nevada Supreme Court held that appeal counsel was not ineffective because Kirksey?s claim was waived by his guilty plea. App. 99. The court further held that [although Judge Lehman?s ex parte communication with Dr. Masters [sic] was inappropriate, there is no evidence that the communication resulted in bias or prejudice on the part of the judge.? App. 100. In the second state post-conviction proceeding, the Nevada Supreme Court rejected Kirksey?s augmented IAC direct appeal counsel claim as successive. App. 82. There has never been any dispute in this case that Kirksey is entitled to the benefit this Court?s equitable ruling in Martinez V. Ryan, 132 S. Ct. 1309 (2012), because a ?rst state post-conviction proceeding in Nevada presents his only opportunity to raise claims of ineffective assistance of trial and direct appeal counsel. The Nevada Supreme Court held that Kirksey?s bias claim ?was reasonably available to raise in the ?rst timely petition,? which meant that it was procedurally defaulted. App. 66. The court further held that Kirksey?s ?argument that the trial judge was biased due to a letter that was sent to him by appellant was reasonably available prior to the instant petition because the letter [sic] available at the time of trial and 27 3 3 because appellant had personal knowledge of the letter.? App. 69. The court did not hold that Kirksey?s claim was barred by his guilty plea, but instead denied it based on the ??nding? that Dr. Master embraced the ?ndings contained in the supplemental competency report authored by Judge Lehman. App. 66-67. In the federal district court, Kirksey argued that he was entitled to reconsideration of the court?s procedural order ?nding that his IAC claims were procedurally defaulted on the basis of this Court?s intervening decision in Martinez. The court rejected Kirksey?s argument without permitting an evidentiary hearing on the ground that there was no reasonable probability that the outcome of the ?rst state post-conviction proceeding would have been different if prior state counsel had raised IAC claims asserting judicial bias. App. 31-32. The Ninth Circuit also held that Kirksey would not have been entitled to equitable relief under Martinez because the facts did not present an ?extreme? case of judicial bias. App. 4. As explained above in section A, the Ninth Circuit erred in apprehending Kirksey?s claim as one asserting mere bias and prejudice by Judge Lehman as opposed to considering whether the court had a more direct stake in the outcome thereby requiring recusal pursuant to In re urcIJJIS'on and Ma yberry. Neither the federal district court nor the Ninth Circuit attempted to reconcile the ?nding that Judge Lehman?s authorship of the competency report should have been apparent to prior state counsel with Kirksey?s argument that ?rst state post-conviction counsel?s performance was de?cient for failing to investigate and litigate this issue. The fact that the Ninth Circuit granted Kirksey a certi?cate of appealability on his IAC claims demonstrates that they were substantial enough to deserve further factual development. See Martinez, 132 S. Ct. at 1318-19. The Ninth Circuit?s decision must therefore be reversed and the case remanded so that Kirksey can receive an evidentiary hearing pursuant to Martmez. 28 . 3 1/1/4ng As to Kirksey?s claim of ineffective assistance of direct appeal counsel, the panel stated that ?the state court concluded that Kirksey?s appellate counsel was constitutionally adequate even though counsel failed to order certain transcripts. Kirksey does not explain how this determination was unreasonable.? App. 5. The state court made no such factual ?nding so Kirksey was under no burden to prove that it was unreasonable. As explained above, the last reasoned decision of the Nevada Supreme Court rejected Kirksey?s claim because he could not show that it had merit. App. 66-67. Direct appeal counsel could not raise a constitutional claim concerning Judge Lehman?s off-the-record contact with Dr. Master and his authorship of the supplemental competency report when counsel himself did not know that the contact occurred because he did not order and review the transcripts of the proceedings. Counsel did not have a strategic justi?cation for failing to raise constitutional issues that were apparent from the record that he did not know about because he did not order the record. Under the state?s appellate rules, appeal counsel could not raise an issue on appeal that was not supported by Specific citations to the record below. See Nevada Rule of Appellate Procedure 28(e) (requiring citations to the record of facts supporting claims of error). The Ninth Circuit erred in sustaining a ?nding that the state court never made, and its assertion that direct appeal counsel in this capital case was not ineffective when counsel failed to even have the pretrial proceedings transcribed was in error. B. The Ninth Circuit Erred in Failing to Consider the Merits of Kirksey's Competency and Claims. The Ninth Circuit did not decide whether Kirksey?s due process rights were violated when Judge Lehman failed to grant him a competency hearing. The state courts also did not render a decision on this issue. See 28 U.S.C. 2254(d); Johnson 29 A- we may '3 (52376? V. Wf?ilams, 133 S. Ct. 1088, 1096-97 (2013).10 As explained above, the panel held that Kirksey?s procedural competency claim under Pate V. Robinson, 383 U.S. 375 (1966), was procedurally defaulted because prior state counsel did not suspect that Judge Lehman authored the supplemental competency report and did not investigate that issue. App. 3. The Ninth Circuit also summarily denied Kirksey?s arguments under Martinez without expressly deciding whether Judge Lehman erred in failing to grant a competency hearing pursuant to Pete. Instead of rendering a decision on Kirksey?s procedural competency claim, the federal court and the Ninth Circuit held that Kirksey could not prevail because he did not prove that he was in fact incompetent to plead guilty. App. 20; App. 5-6. The Ninth Circuit erred in failing to distinguish between a procedural competency claim under Pate versus a substantive competency claim that Kirksey was incompetent at the time that he entered a guilty plea. In short, the panel perversely relied upon the Pate Violation to ?nd that Kirksey could not prevail on his separate claim that he was incompetent when he pleaded guilty. As to the latter claim, neither the federal court nor the Ninth Circuit acknowledged the fact that Kirksey never received an evidentiary hearing on that issue in state court. Finally, the Ninth Circuit .found that Kirksey?s claim that trial counsel was ineffective in failing to investigate and litigate the issue of his competency was procedurally At most, the Nevada Supreme Court addressed Kirksey?s claim that he was incompetent to plead guilty. See App. 64 (stating that ?Appellant's claims relating to competency were claim 3 (he was incompetent to enter his guilty plea and claim 5 (he was incompetent to be sentenced?). The court did not include claim one in its discussion, which was the claim that Judge Lehman should have granted a competency hearing. The Nevada Supreme Court?s reasoned decision therefore demonstrates that there was no decision on the merits of Kirksey?s Pate claim and the federal court?s review of the claim is de novo. Johnson, 133 S. Ct. at 1097 (?When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge?). 30 3 MESH defaulted, but the court never decided whether he was entitled to further factual development of that issue under Martinez. 1. Judge Lehman?s Authorship of the Supplemental Competency Report Did not Resolve the Serious Outstanding Issues of Kirksey?s Competency to Plead Guilty. Judge Lehman?s authorship of the supplemental competency report in connection with his off-the'record contact with Dr. Master did not resolve the serious outstanding questions of Kirksey?s incompetency. At the ?rst state post-conviction hearing, Dr. Master testi?ed that it was his opinion that Kirksey was incompetent at the time of his capital sentencing hearing. App. 550. However, no court has acknowledged the import of Dr. Master?s testimony. At the second state post- conviction evidentiary hearing, Dr. Master was confronted with the discrepancies between his initial report and the supplemental competency report, and he resolved those discrepancies by testifying that he stood by his initial opinion that Kirksey was not competent. App. 634. The state and federal courts have all acknowledged that Dr. Master's testimony was that Kirksey was incompetent, but they did not decide whether he was deprived of his right to a competency hearing. The state court judge who adjudicated the second state post'conviction proceeding, the Honorable Lee Gates, recognized that ?Dr. Master opined at the hearing, that he thought the Defendant was incompetent because of depression . . . App. 719, 724. On appeal, the Nevada Supreme Court likewise acknowledged that ?Dr. Master testi?ed that he believed appellant was incompetent due to a suicidal ideation.? App. 66-67. Even counsel for the State acknowledged in his answer to the petition that ?[iln the subsequent evidentiary hearing, Kirksey- is correct in noting that Master returned to his earlier depression theme.? Finally, the federal district court noted ?Dr. Master?s re'confirmation of his initial opinion? at the 2006 evidentiary hearing. App. 21. 31 3 ,i/drg 3% 301573 The Nevada Supreme Court and the federal district court disregarded these observations based on Dr. Master?s testimony that his signature was on the supplemental competency report and that he was not coerced into changing his opinion. App. 20. However, any suggestion that Dr. Master embraced the supplemental competency report constitutes an unreasonable determination of the facts in light of the evidence presented in state court. See Brum?'eld V. Cain, 135 S. Ct. 2269, 2276-77 (2015). For one, the ??nding? that Dr. Master embraced the report written by Judge Lehman was initially made by Lehman himself, App. 597-603, when he was still concealing the relevant facts that were within his peculiar knowledge. Neither Judge Lehman nor any reviewing court has acknowledged the import of Dr. Master?s testimony from the ?rst post-conviction hearing that Kirksey was incompetent to be sentenced. App. 21. At the second state post-conviction hearing, the representative for the State acknowledged that ?the two reports appear to be a little bit contradictory to everyone.? App. 633. During argument, Judge Gates commented that Dr. Master testi?ed that ?he subscribed to the May 23rd [initial report] and not really [the supplemental reportl.? App. 708. According to the court, ?the May report was the one that [Dr. Master] adopted and he thought the guy was incompetent still even after looking at the one that he wrote.? App. 712. Given the state record, it was unreasonable for the Nevada Supreme Court to ?nd that the report authored by Judge Lehman re?ected Dr. Master?s opinion. Just as important, regardless of Dr. Master?s ultimate opinion, the procedures used by Judge Lehman were not suf?cient under Pate to resolve the issue without a hearing. Separate and apart from the issue of Dr. Master?s ultimate opinion is the recognition by Judge Pro that he was ?obviously concerned about any of the [potential] scenarios? involving Lehman?s contact with Dr. Master ?without counsel involved,? which he found ?disturbing.? App. 12122. As a factual matter, there was 32 .?gift? ft" 3 0?57 no permissible factual basis for the material change in Dr. Master?s opinion other than his contact with Judge Lehman. In Pate, this Court required that a competency determination be made using ?appropriate state procedures, which conform to the requirements of the Fourteenth Amendment.? Pate, 383 U.S. at 386 (citation and quotation omitted). It should be beyond rational dispute that the ?procedure? used by Judge Lehman here was insuf?cient under Pate to ensure that an adequate and reliable determination was made of Kirksey?s competency to stand trial. 015' Gardner V. Florida, 430 U.S. 349, 353 (1977) (due process violation occurred when trial court relied upon secret information that was not disclosed to defense counsel). The fact that Kirksey has gone through both state and federal court without any court deciding whether he was constitutionally entitled to a competency hearing is a fact that cries out for this Court?s intervention. 2. Kirksey Was Denied an Opportunity to Prove that He was Incompetent at the Time that He Pleaded Guilty and He is Entitled to an Evidentiary Hearing. Kirksey was denied an evidentiary hearing in state court on the issue of whether he was incompetent to plead guilty, which meant that the Ninth Circuit could not deny his claim without ?rst permitting an evidentiary hearing. See Brumffeld, 135 S. Ct. at 2277-78 (unreasonable to deny colorable claim without a hearing). Kirksey argued that the parameters that were established by the Nevada Supreme Court in its mandamus order before the second state evidentiary hearing categorically prevented him from receiving an adequate hearing in state court. App. 626. Speci?cally, the state courts only permitted a hearing to determine whether Dr. Master embraced the ?ndings of the supplemental competency report, not to allow Kirksey an opportunity to prove that he was incompetent at the time of his guilty plea. See id. 33 ea Ct . 3 3037?? Moreover, on appeal the Nevada Supreme Court held that Kirksey?s intellectual disability was not relevant to his competency, App. 71, and further that ?suicidal ideation does not by itself meet the legal standard of competency.? App. 66- 67 n.8.11 This ruling by the state court was contrary to Drape V. Missouri, 420 U.S. 162 (1975), which recognizes that ?an attempt at suicide creates a reasonable doubt as to the movant?s competency to stand trial.? Id. at 179; see also V. Overholser, 369 U.S. 705, 707 (1962) (trial court found defendant incompetent due to ?manic depressive The state court?s failure to allow Kirksey to prove his claim, and its purported ??ndings,? were unreasonable, and Kirksey is entitled to a hearing to prove that he was incompetent to plead guilty to capital murder. 3. The Ninth Circuit Failed to Determine Whether Trial Counsel Was Ineffective in Failing to Investigate and Litigate the Issues of Kirksey?s Competency and of Judge Lehman's Failure to Grant a Competency Hearing. Kirksey argued that trial counsel was ineffective (1) in failing to conduct an investigation of his competency; (2) in failing to object to Judge Lehman?s proposal to contact Dr. Master off-the-record; (3) in failing to follow up with Dr. Master about the purported change in his expert opinion; and (4) in his failure to conduct any investigation of the facts of the case. The Nevada Supreme Court found that Kirksey?s claim was procedurally barred as successive. App. 61. In the ?rst state post-conviction proceeding, Kirksey argued that trial counsel was ineffective in failing to obtain his medical records from the Riverside General Hospital which showed his involuntary hospitalizations for acute before and after the homicide. In rejecting Kirksey?s claim, the Nevada Supreme Court held that there '1 The case cited the Nevada Supreme Court, Afefchor'Gfo?a V. State, 660 P.2d 109, 113 (Nev. 1983 was a case where the court was purportedly applying this Court?s decision in Dusky V. United Sta res, 362 U.S. 402 (1960). Malabar-Gloria does not stand for the proposition that suicidal ideation can never rise to the level of incompetency. 34 3 44v 3 @533? was no reasonable probability that Kirksey would have pleaded not guilty and insisted on going to trial if his counsel had conducted an investigation. App. 96. Other than the state court?s ?nding that Kirksey?s claim was successive, there was no decision on the merits of Kirksey?s augmented claim in the second state post- conviction proceeding which included the fact that Judge Lehman drafted the supplemental competency report. The federal district court held that the state court?s decision that trial counsel was not ineffective in failing to conduct an investigation was an unreasonable application of clearly established federal law. App. 1516. However, the court held that Kirksey could not demonstrate prejudice because he would have insisted on pleading guilty anyway. App. 15. In order to arrive at that result, the district court held that the portion of Kirksey?s IAC claim that argued that counsel was ineffective in failing to investigate and litigate competency was procedurally barred. App. 45' 46, 49. The court did not acknowledge the part of the Nevada Supreme Court?s decision which found that the claim, including the competency portion of the claim, was successive as it had been previously raised. App. 61. The federal court?s failure to acknowledge the successiveness ruling by the Nevada Supreme Court is important because this Court has recognized that a ?nding that a claim has been previously raised does not constitute a procedural default barring federal review. Cone V. Bel], 556 US. 449, 466 (2009). The Ninth Circuit found that Kirksey?s claim was procedurally defaulted, and it did not address the Nevada Supreme Court?s ruling that the claim had been previously raised in the first state post-conviction proceeding. App. 3. The panel also failed to consider Kirksey?s IAC competency claim under Mai'tmez to determine whether he was entitled to factual development in federal court. Instead, the panel arbitrarily limited its discussion of Martinez to Kirksey?s claim of judicial bias. App. 35 951%? 3'4. The panel rejected the remainder of Kirksey?s IAC claim based on trial counsel?s failure to conduct any investigation in this capital case because ?Kirksey has presented no evidence to suggest that he would have insisted on going to trial if counsel had mounted a more vigorous investigation of the charges against Kirksey.? App. 4. The panel did not address Kirksey?s arguments that the federal court erred in separating his IAC competency claim from his other IAC claims, and it did not address Kirksey?s arguments under Martinez. Trial counsel?s failure to conduct an investigation of Kirksey?s competency was de?cient as the federal court implicitly found when it held that counsel?s failure to conduct any other investigation of the case was de?cient. Trial counsel was provided with discovery from the prosecutor of Kirksey?s hospital records from Riverside General Hospital which contained a notation that Kirksey had a history of atypical App. 130, but counsel failed to follow up on that lead by obtaining the treasure trove of hospital records from Riverside General that documented Kirksey?s acute App. 130-201. Counsel?s obligations were made even more acute when he learned that Kirksey would not accept a guilty plea to a lesser offense because he wanted to get the death penalty. Effective counsel would have conducted an investigation by obtaining Kirksey?s records from the jail which contained notations that he was given Thorazine, a powerful drug, while awaiting trial. App. 236. Effective counsel would have provided all of these records to Drs. Master and urasky to assist them in their competency evaluations. Trial counsel, however, did nothing to assist the in making their competency assessments. Once Dr. Master found Kirksey to be incompetent, effective defense counsel would have adequately litigated that issue by objecting to Judge Lehman?s proposal to contact Dr. Master off-the-record regarding his ?ndings. Once he received the 36 .. . 42ft 3 x?f?i/ supplemental report that was authored by Judge Lehman, effective counsel would have investigated the circumstances surrounding the creation of the report and would have interviewed Dr. Master. Such an investigation would have revealed that Dr. Master?s supposed change in opinion was not based on any permissible factual information other than his contact with the court. Effective defense counsel would have again moved the trial court for a competency hearing on the grounds that the judge-authored report did not resolve the outstanding issue of Kirksey?s incompetency, and argued that such as hearing was required under Pate. There is a reasonable probability that the outcome of the proceedings would have been different if trial counsel had effectively investigated and litigated that issue. Trial counsel was also ineffective in failing to conduct any other investigation in the case and for failing to adopt an adversarial stance during the plea and sentencing proceedings. Counsel did not take the rudimentary steps of interviewing Eva Kearns and Jerry Jordan regarding the facts of the offense, and counsel never followed through on his intention to order the transcripts of Jordan?s trial. If counsel had obtained a copy of the ?le in Jordan?s case, he would have learned that Jordan was only charged as an accomplice to manslaughter, and that he was acquitted of that offense. App. 265. The prosecutor?s assessment of Jordan?s culpability as an accomplice was important because it also re?ected the prosecutor?s subjective assessment of Kirksey?s criminal culpability.12 When combined with the testimony of the medical examiner that the decedent died due to a pre-existing defect in his cerebral artery and that the circumstances of the offense involved a ?st-?ght, effective defense counsel would have used that information along with the evidence 1'3 Nevada law does not permit Jordan to be an accomplice to a manslaughter while at the same time permitting Kirksey to be liable for capital murder, because an accomplice is ?equally guilty with the principal? as a matter of law. State V. Esplhozei', 19 P. 677, see (Nev. 1888). 37 -. - 691%. )3 adduced at a competency hearing to inform the trial court of it at the change of plea hearing and at the capital sentencing hearing to protect Kirksey?s rights. 4. The Ninth Circuit Erred in Failing to Determine Whether Direct Appeal Counsel Was Ineffective in Failing to Order the Transcripts of the Pre-Trial Proceedings in Order to Raise a Claim that Judge Lehman Should Have Ordered a Competency Hearing. Kirksey argued that direct appeal counsel was ineffective in failing to order the transcripts of the pretrial proceedings in order to raise a claim that Judge Lehman erred in failing to grant a competency hearing. The Ninth Circuit?s holding that counsel was not ineffective for failing to order the transcripts of the pretrial proceedings is addressed above. See pp. 27-29, supra. The court further held that ?Kirksey was never deemed incompetent under the appropriate controlling standards for determining competency, see Gadz'nez V. Moran, 509 U.S. 389, 396 (1993), and Kirksey therefore cannot show that he was prejudiced by the communication [between Judge Lehman and Dr. Master]. Campbell V. Rice, 408 F.3d 1166, 1172, (9th Cir. 2005) (en banc).? App. 5'6. Once again, the Ninth Circuit failed to apprehend the fact that it was Judge Lehman?s authorship of the supplemental competency report in connection with his off-the-record contact with Dr. Master that prevented Kirksey from obtaining any competency hearing. This Court?s precedents clearly distinguish between a procedural competency claim under Pate versus a substantive competency claim that Kirksey was incompetent to plead guilty. The fact that both the state and federal courts have consistently failed to address the pertinent claim that direct appeal counsel should have raised demonstrates why the instant case cries out for this Court?s intervention. CONCLUSION For the foregoing reasons, Kirksey respectfully requests that this Court grant his petition for writ of certiorari and reverse the judgment of the Ninth Circuit Court 38 . . - W6 -. gal/48% 3/63?3: of Appeals. In the alternative, Kirksey requests that this Court grant certiorari, vacate the decision of the Ninth Circuit, and remand for further proceedings in light of the Court?s decision in Williams V. No. 15-5040. DATED this 29th day of February 2016. Respectfully submitted, Rene Valladares Federal Public Defender of Nevada DAVID Co unse] ofRe cord Assistant Federal Public Defender 411 E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 Counsel for Petitioner 39 3 3 46% STATEMENT OF RELATED CASES In Jose Echavarria V. Renee Baker, Case No. the United States District Court for the District of Nevada granted a writ of habeas corpus and vacated the ?rst?degree murder conviction and death sentence of the petitioner based upon the judicial bias of Judge Lehman. In that case, a capital habeas petitioner alleged that Judge Lehman ?was biased against him because the Victim, FBI Special Agent John L. Bailey, had investigated the trial judge and the Colorado River Commission (CEO) in 1986 and 1987, regarding an allegedly fraudulent land transaction that the trial judge had been involve in as Chairman of the CRC (before he became a state trial judge).? Order at 9, Echavarria, (January 16, 2015) (Docket No. 210). ?The evidence submitted by Echavarria shows, beyond any dispute, that Agent Bailey had been centrally involved in conducting the investigation of the trial judge, and that the alleged fraud and the FBI investigation were of such significance that they would have had serious implications for the trial judge.? Id. The federal court found that Judge Lehman, ?the prosecution, and even CO'defendant Gurry?s counsel knew before trial of the investigation of the trial judge, but that [the petitioner] did not.? Id. In its order granting habeas relief, the federal court concluded ?that under the circumstances of this case including the relationship between the trial judge, the FBI, and the murder. victim, the nature of the investigation, and the involvement of the FBI in the case it was constitutionally intolerable for the trial judge to preside over the case.? Id. at 16. The State?s appeal of the district court?s decision granting habeas relief is currently pending before the Ninth Circuit Court of Appeals. See Jose Echavarria V. Renee Baker, Case No. 15-99001. Kirksey?s case was Judge Lehman?s ?rst capital murder case and Echavarria was his second capital murder case. 40