United States v. 2005-09-07 | 02-99008 | BOYDE VWOODFORD | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RICHARD BOYDE, No. 02-99008
Petitioner-Appellant, D.C. No.
v.  CV-91-02522-WDK
JILL BROWN, Warden, ORDER
Respondent-Appellee. 
Filed September 7, 2005
Before: Jerome Farris, Alex Kozinski and
Barry G. Silverman, Circuit Judges.
ORDER
1. We grant the petition for rehearing and amend the opin-
ion filed April 21, 2005, as provided herein.
2. On May 24, 2005, we received a letter from the district
judge who presided over Boyde’s federal habeas proceeding
“bring[ing] to the Court’s attention a ‘mistake in [the] disposi-
tion.’ ” Letter from the district judge to the clerk of the court
of appeals (May 24, 2005) (quoting Ninth Circuit General
Order No. 12.10) (second alteration in original). In his letter,
the district judge informed us that we had erred in not
remanding this case to the district court for an evidentiary
hearing to determine whether Boyde had been prejudiced by
his attorney’s failure to introduce evidence that Boyde suf-
fered physical abuse as a child and was aware that his sisters
had been sexually abused. On May 25, the day after we
received the district judge’s letter, the mandate in this case
issued due to a clerical error.
12511

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The district judge’s letter was unusual, given that respon-
dent, in the nearly five weeks following the filing of the opin-
ion in this case, had not filed a timely petition for rehearing—
the usual process by which mistakes in our opinions are cor-
rected. One week after receipt of the district judge’s letter by
this court and the parties, respondent filed a Motion to Recall
Mandate and Correct Disposition. This motion essentially
incorporated by reference the arguments in the district judge’s
letter. Following receipt of respondent’s motion, we ordered
the mandate recalled, having been issued due to clerical error,
and construed respondent’s motion to recall the mandate and
correct our opinion as a belated petition for rehearing. We
ordered petitioner to file a response, which he did, opposing
rehearing.
3. An evidentiary hearing is not always required to deter-
mine whether a petitioner has been prejudiced by ineffective
assistance of counsel. See, e.g., Wiggins v. Smith, 539 U.S.
510, 534-38 (2003); Silva v. Woodford, 279 F.3d 825, 847
n.17, 849-50 (9th Cir. 2002); Jackson v. Calderon, 211 F.3d
1148, 1163-64 (9th Cir. 2000). Nevertheless, we exercise our
discretion and order such a hearing here. See Wallace v. Stew-
art, 184 F.3d 1112, 1118 (9th Cir. 1999).
We recognize, however, that the district judge who previ-
ously denied Boyde’s habeas petition may be viewed as hav-
ing assumed the role of advocate by picking up the baton
respondent had dropped and sending us a letter that provided
a template for respondent’s tardy petition for rehearing.
Although the district court committed no impropriety in send-
ing the letter, we remand to the Chief Judge of the Central
District of California with instructions to reassign the case to
a different judge to ensure not only the existence, but the
appearance, of impartiality at the evidentiary hearing. See M.
Margaret McKeown, Don’t Shoot the Canons: Maintaining
the Appearance of Propriety Standard, 7 J. App. Prac. & Pro-
cess 45, 53-58 (2005) (discussing the importance of maintain-
ing the appearance of judicial impartiality).
12512 BOYDE v. BROWN

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Following reassignment, the district court shall conduct an
evidentiary hearing to consider Boyde’s ineffective assistance
of counsel claim relating to his attorney’s failure to introduce
evidence during the penalty phase that Boyde suffered physi-
cal abuse as a child and was aware that his sisters had been
sexually abused. Based upon the evidence produced at this
hearing, the district court will determine whether there was “a
reasonable probability that the jury would have imposed a dif-
ferent sentence but for the errors Boyde’s counsel made.”
Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 694 (1984)).
Petition for rehearing GRANTED; opinion AMENDED;
and the case REMANDED with instructions.
No further petitions for rehearing will be accepted. The
mandate shall issue forthwith. See Fed. R. App. P. 2.
12513 BOYDE v. BROWN

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