Robertson Fowler, III v. Keith Butts
829 F.3d 788
7th Cir.2016Background
- Fowler pleaded guilty in Indiana to unlawful possession of a firearm as a “serious violent felon” and habitual offender and received a 30-year sentence (15 years for the offense + 15 for criminal history).
- While Fowler’s appeal was pending, the Indiana Supreme Court decided Mills, holding a prior conviction cannot be used both to establish "serious violent felon" status and habitual-offender status.
- Fowler’s appellate counsel did not invoke Mills; the state appellate court affirmed, and later rejected Fowler’s collateral claim that his plea waived reliance on Mills.
- Fowler filed a federal §2254 petition claiming ineffective assistance of appellate counsel; the district judge (Magnus-Stinson) denied relief but had been the state judge who sentenced Fowler earlier.
- The Seventh Circuit held the district judge was disqualified under 28 U.S.C. §455(a) from hearing the §2254 collateral attack because she previously presided over Fowler’s state sentencing; the judgment was vacated and remanded to a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a federal judge who previously imposed or affirmed a state conviction/sentence may hear a §2254 collateral attack | Fowler: Disqualification not required; his claim targets appellate counsel performance, not the judge’s prior state decision | Indiana: Weddington should be limited; judge can decide matters about counsel; disqualification unnecessary | A federal judge is disqualified under §455(a) from hearing a collateral attack on a judgment she entered or affirmed as a state judge; case must be reassigned |
| Whether §455(a) recusal claims can be raised on appeal without first seeking mandamus or moving to disqualify in district court | Fowler: §455(a) creates personal rights enforceable on appeal; litigants may not know to move below | Indiana: Fowler forfeited the right by not seeking mandamus or filing a recusal motion in district court | Circuit overrules prior precedent requiring mandamus; §455(a) claims are reviewable on direct appeal and need not have been raised below |
| Whether failure to move for recusal in the district court waives or forfeits appellate review of §455(a) disqualification | Fowler: Nonfiling should not bar review because the judge must self-disqualify and litigants (esp. pro se) may not know | Indiana: Prior Seventh Circuit cases treated silence as forfeiture/waiver barring appellate relief | Court: Failure to move below does not automatically bar appellate review; prior cases (e.g., Balistrieri) to that extent are overruled; judge must self-disqualify absent on-record waiver |
Key Cases Cited
- Weddington v. Zatecky, 721 F.3d 456 (7th Cir. 2013) (federal judge who previously acted as state judge should not decide §2254 petition challenging that state judgment)
- United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (previous Seventh Circuit rule limiting appellate review of §455(a) claims; overruled in part)
- Liteky v. United States, 510 U.S. 540 (1994) (standards for judicial bias and recusal)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (judicial disqualification principles and structural error analysis)
- Nguyen v. United States, 539 U.S. 69 (2003) (disqualified judge participation may require reversal even without timely objection)
- Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) (structural error where a judge previously participated in a prosecutorial role requiring recusal)