Case Information
*2 *(Amended - See Clerk’s Order dated SLOVITER, Circuit Judge. 3/10/04)
The District Court judge who dismissed Appellant’s petition for a writ of habeas corpus had been the state court On Appeal from the United States judge who presided over his criminal trial.
District Court for the Middle District of The principal question we consider is Pennsylvania whether the judge should have sua sponte
(D. C. No. 02-cv-00561) recused from the habeas proceeding. District Judge: Hon. William W.
Caldwell Argued May 5, 2004 * Hon. Louis H. Pollak, Senior United States District Judge for the Before: SLOVITER and FUENTES, Eastern District of Pennsylvania, Circuit Judges, and POLLAK, District sitting by designation. *3 Clemmons’ habeas petition as untimely
I. and all other pending motions as moot.
Appellant Charlie Clemmons’ There was no specific reference to conviction arose out of a 1980 incident of Clemmons’ request for counsel. “road rage,” in which Clemmons shot and
killed another motorist following an Clemmons filed an application for altercation stemming from a traffic a Certificate of Appealability (COA) to incident. App. at 10. Clemmons was this court. We granted the COA directed convicted by a jury in the Court of to the following question: whether the Common Pleas of Dauphin County, district court judge was required to recuse Pennsylvania of first-degree murder. himself from hearing the federal habeas Then-state judge William W. Caldwell corpus proceedings attacking the trial and presided over the 1981 state court trial conviction over which he presided when and, following Clemmons’ conviction, he was a state court judge. The same day Judge Caldwell sentenced him to life we appointed counsel to represent imprisonment for first-degree murder. 18 Clemmons in this matter against Appellees Pa. Const. Stat. Ann. § 2502. Clemmons William J. Wolfe, District Attorney of the filed a series of four petitions in state court County of Dauphin, and Pennsylvania for collateral relief under the Post Attorney General Gerald J. Pappert. [1] Conviction Relief Act (PCRA), 42 Pa. Three months later we amended the COA Cons. Stat. Ann. §§ 9541 et seq., and its to add the following issue: whether the predecessor statute. Each petition was district court judge abused his discretion denied, and the denials of the first three by deciding the merits of Appellant’s petitions were affirmed by the state petition for writ of habeas corpus without Superior Court. The fourth petition was first addressing Appellant’s request for dismissed. counsel.
On February 7, 2002, Clemmons On appeal, Clemmons contends that filed a habeas corpus petition in federal Judge Caldwell was required to recuse court pursuant to 28 U.S.C. § 2254. His himself sua sponte in Clemmons’ 28 petition was eventually assigned to Judge U.S.C. § 2254 habeas action challenging Caldwell, who by then had been appointed the trial and conviction over which Judge to the United States District Court for the Caldwell formerly presided as a state court Middle District of Pennsylvania. On judge. Although Clemmons does not September 27, 2002, Clemmons applied explicitly so state, it appears he argues that for appointment of counsel. On November
27, 2002, Judge Caldwell issued an opinion in which he acknowledged that he had “presided at petitioner’s trial” in state court. App. at 10. He then denied The list of Appellees was amended per Order of the Clerk of Court dated March 10, 2004. *4 this presents a legal question over which “error seriously affects the fairness, we would have plenary review. Second, integrity or public reputation of judicial Clemmons contends that the District Court proceedings.” United States v. Olano, 507 abused its discretion by failing to address U.S. 725, 732 (1993) (internal quotation the merits of Clemmons’ application for marks and citations omitted). On its face, appointment of counsel before dismissing the error complained of in this case – a the motion as moot. federal judge sitting in review of the
propriety of the state proceedings II. conducted by that judge – seriously affects the fairness and public reputation of the The relevant federal statute, 28 judicial proceedings, and thus we proceed U.S.C. § 455(a), provides that “[a]ny to consider whether the habeas judge justice, judge, or magistrate judge of the shou ld have sua sponte recused United States shall disqualify himself in notwithstanding Clemmons’ failure to any proceeding in which his impartiality raise the issue in the habeas proceeding. might reasonably be questioned.” 28 We have previously stated that the U.S.C. § 455(a). [2] The Supreme Court has “public’s confidence in the judiciary . . . stated that the purpose of this provision is may be irreparably harmed if a case is “to promote public confidence in the allowed to proceed before a judge who integrity of the judicial process.” Liljeberg appears to be tainted.” In re Kensington v. Health Servs. Acquisition Corp., 486 Int’l Ltd., 353 F.3d 211, 220 (3d Cir. U.S. 847, 860 (1988). 2003) (emphasis in original) (internal
quotation marks and citation omitted).
Clemmons claims that Judge Caldwell created the appearance of When Congress amended Section impropriety by failing to recuse himself in 455(a) in 1974, it replaced the statute’s the habeas proceeding because he had formerly subjective standard with an presided over the state trial. Because objective one, stating: Clemmons did not object to Judge
Caldwell’s failure to recuse in the habeas Subsection (a) of the proceeding, a “plain error standard of a m e n d e d s e c t io n 4 5 5 review applies.” United States v. contains the general, or Dalfonso, 707 F.2d 757, 760 (3d Cir. catch- all, provision that a 1983) (citations omitted). We may judge shall disqu alify overlook the failure to object where the himself in any proceeding in
which “his impartiality Clemmons disclaims any reliance on 28 U.S.C. § 144, which requires a showing of bias on the part of the judge. m i g h t questioned.” This sets up an objective standard, rather than the subjective standard r e a s o na bl y b e *5 set forth in the issue and stated that a federal judge should e x i s t i n g s t a t u t e recuse himself or herself from hearing through use of the habeas petitions if s/he participated in the p h r a s e “ i n h i s petitioner’s state court proceedings. An opinion.” almost identical issue was considered by the Seventh Circuit in Russell v. Lane, 890 H.R. Rep. No. 93-1453 (1974), reprinted F.2d 947 (7th Cir. 1989). In that case, the in 1974 U.S.C.C.A.N. 6351, 6354-55. district court judge considered a habeas petition even though that judge had The bedrock principle of a previously been a member of the panel of hierarchal judiciary that “[n]o judge shall the state appellate court that affirmed the hear or determine an appeal from the conviction. On appeal, the Court of decision of a case or issue tried by him” is Appeals for the Seventh Circuit stated that embedded in 28 U.S.C. § 47, a statute the judge in question: inapplicable here because its plain
language only applies to cases on was being asked to find that “appeal,” rather than habeas petitions. The h e h a d a f f i r m e d a n absence of a directly applicable statute in unconstitutional conviction, no way diminishes the importance to a and, implicitly, that by litigant of review by a judge other than the doing so he had become judge who presided over the case at trial. c o m p l i c i t i n s e n d i n g Of course, a habeas action is not an appeal [petitioner] to prison in from the state court action. The state violation of [petitioner’s] courts provide the appeal process. constitutional rights . . . . A However, a habeas action provides the federal habeas corpus criminal defendant with the opportunity to proceeding brought by a have a federal court review the state state prisoner is not a proceedings for constitutional infirmities. request to a state judge to In this respect, there is no reason why the reconsider his ruling. It same rules governing independence, follows the exhaustion of conflict of interest, or appearance of
partiality should not apply.
confronted the precise issue at bar, at least two [3] other circuits have addressed this Although this court has not Sixth Circuit involving similar issues to the case at bar, Morgan v. Money, 210 F.3d 372 (6th Cir. 2000) (unpublished) and Taylor v. Campbell, 831 F.2d 297
(6th Cir. 1987) (unpublished), we decline to rely upon them because they are both Although the parties have called designated as unpublished and hence not our attention to two decisions of the precedential.
the petitioner’s state impartiality of a judge in such a position. remedies and is Id. at 1117 (“To say the least, it would be addressed to a judge unbecoming for a judge to sit in a United who was not a States Court of Appeals to participate in m e m b e r o f t h e the determination of the correctness, state-court panel that propriety and appropriateness of what he a f f i r m e d t h e did in the trial of the case.”). Although it p e t i t i o n e r ’ s recognized that Section 47 was not at issue conviction and who in the case before it at that time, the court had no emotional stated that “[t]he same principle is c o m m i t m e n t t o involved” because “in federal habeas v i n d i c ating s t a te corpus cases the federal district judges do j u s t i c e a s sit in review of the proceedings in the state administered in the courts.” Id. That review is designed to be petitioner’s case. an independent one, as Justice Blackmun noted when he stated “§ 2254 motions Id. at 948. The court concluded that the anticipate that the federal court will petitioner “was entitled to have his habeas undertake an independent review of the corpus petition heard by a judge who had work of the state courts, even where the not participated in his conviction” and thus federal claim was fully and fairly litigated” it remanded the matter to permit the in the state court. Reed v. Farley, 512 U.S. petitioner the opportunity to file a motion 339, 362 (1994) (Blackmun, J., dissenting) to vacate the order of the district judge that (emphasis added) (citations omitted). dismissed several of petitioner’s claims.
Id. Appellees contend that Clemmons’
recusal claim should fail because the Similarly, in Rice v. McKenzie, 581 record does not show any bias or prejudice F.2d 1114 (4th Cir. 1978), the Fourth by Judge Caldwell. We certainly agree Circuit considered whether a federal that there is no evidence that the judge district judge, who formerly presided as exhibited any bias against Clemmons. But the chief justice of the state supreme court that is not dispositive because actual bias that reviewed the defendant’s claim, could is not a requisite element for a valid claim consider those claims in the context of a under Section 455(a). In fact, Judge habeas proceeding in the federal forum Caldwell granted Clemmons permission to without running afoul of Section 455(a). amend his habeas petition, which negates The court noted that under 28 U.S.C. § 47 any inference of partiality, the focus of a federal judge may not adjudicate the section 455(a). Therefore, the asserted appeal of an issue or case which s/he tried absence of actual bias is irrelevant; the as a lower court judge because a mere appearance of bias still could reasonable person might doubt the diminish the stature of the judiciary. See *7 In re Kensington Int’l Ltd., 353 F.3d at We see no error in the 220. District Court’s refusal to grant the motion [to recuse].
Appellees correctly note that twenty years have passed since the time that Judge Id. at 237. In particular, we emphasized Caldwell presided over Clemmons’ state that the appellant in that case did not court trial and they argue that Clemmons challenge any of the judge’s factual raised the recusal claim as a matter of findings at trial and only moved to recuse strategy only after Judge Caldwell denied the judge “after a lengthy and arduous his habeas petition. They rely on Martin v. trial” in which the judge “invested Monumental Life Insurance Co., 240 F.3d substantial judicial resources.” Id. at 236, 223, 235-237 (3d Cir. 2001), where we 237. We speculated that “all of these rejected a claim that the district court considerations suggest that plaintiff’s judge, who had recused in a related case, motion is a desperate effort to overturn an violated Section 455(a) because he did not adverse decision.” Id. at 236.
recuse himself in a second proceeding “involv[ing] the same principa ls, Martin is inapposite. Martin witnesses, [and] insurance products.” Id. involved a judge who was challenged on at 231. The basis for the judge’s first the basis of his prior institutional recusal was that he formerly had been a affiliation on a matter on which he did not partner at the law firm that represented the work. Here, the issue is the appearance of defendant. However, the district judge had partiality because a judge was asked to resigned from the firm and terminated his review allegations regarding his own financial arrangements with it six years rulings at the state court trial. Moreover, prior to that case, and had never unlike in Martin, where the district court represented the defendant while at the judge had expended considerable time and firm. In light of these facts, we stated: effort in a “lengthy and arduous trial,” 240
F.3d at 236, Judge Caldwell issued only a In the instant matter, the single decision denying Clemmons’ relationship between the motions and did not hold any hearings. In trial judge and the [judge’s short, there is little risk of inefficiency. former] firm had terminated
several years before the case S e c o n d , a l t h o u gh M a r t i n commenced; there was no emphasized the passage of time between blood relationship between the state court trial and the federal habeas the trial judge and anyone in proceeding, nothing in the text of Martin the [judge’s former] firm; suggests that this factor is dispositive. there is no claim of any bias Although the passage of time would be by the trial judge; and the relevant in a situation in which the recusal trial has been concluded. issue does not involve the federal judge’s *8 review of his or her actions as a state confidence in the judiciary, which may be judge, the case before us raises the latter irreparably harmed if a case is allowed to issue and the passage of time cannot proceed before a judge who appears to be overcome a reasonable person’s doubts tainted,” requires that “justice must satisfy about a judge’s impartiality in judging his the appearance of justice.”) (quoting In re or her own past works. Asbestos Litig., 977 F.2d 764, 776, 782 (3d Cir. 1992)). It is important to note that Appellees’ contention that the error, nothing in the record suggests that Judge if any, in the district judge’s failure to Caldwell, a conscientious and hard- recuse did not cause Clemmons prejudice working judge, proceeded with any sort of because any district court judge who had ill motive. However, the focus of our been assigned the case ultimately would inquiry is not his actual bias, but rather, have found Clemmons’ habeas petition to whether a reasonable person might ascribe be untimely is beyond the point. In such a motive to any judge tasked with Liljeberg, the Supreme Court instructed reviewing his past state court rulings in a that, in determining whether a decision federal habeas case. For the reasons set should be vacated based on a federal forth, we conclude that we are obliged to judge’s failure to recuse when he had an vacate the judgment and remand to a interest in the subject matter, the court different district court judge.
should “consider the risk of injustice to the
parties in the particular case, the risk that III.
the denial of relief will produce injustice
in other cases, and the risk of undermining As we noted above, the federal the public’s confidence in the judicial statute on recusals does not specifically process” while bearing in mind that cover the situation raised by this case. In “justice must satisfy the appearance of previous situations, we have decided that justice.” 486 U.S. at 864 (internal we should use our supervisory powers to quotation marks and citation omitted). fill a gap on important procedural or The Supreme Court has never considered ethical matters on a variety of issues. [4] a situation such as the one before us. impropriety 162 (3d Cir. 1993) (“[T]he public’s judicial process.” Id.; see also Alexander to recuse has created an appearance of dispositive that the District Court’s failure v. Primerica Holdings, Inc., 10 F.3d 155, undermining the public’s confidence in the
Clemmons’ habeas petition, we find Regardless of that runs “the risk of the merits of qualified immunity include, at minimum, issues and an analysis of the law that an identification of relevant factual power to require that future dispositions Cir. 2002) (we “exercise our supervisory Lower Merion, 313 F.3d 144, 149 (3d See, e.g., Forbes v. Township of of a motion in which a party pleads justifies the ruling with respect to those *9 The Supreme Court has explicitly 499, 505-07 (1983) (referring to recognized that the courts of appeals “have supervisory authority of federal courts broad powers of supervision” over federal generally); id. at 513 n.1 (Stevens, J., proceedings. Bartone v. United States, concurring) (same); United States v. 375 U.S. 52, 54 (1963) (per curiam); see Payner, 447 U.S. 727, 734-36 & n.7 also United States v. Hasting, 461 U.S. (1980). explanation sufficient to permit the supervisory power “to require the district Circuit); Vadino v. A. Valey Eng’rs, 903 supervisory power decisions in Third courts in this circuit to accompany grants Cir. 2000) (canvassing several of summary judgment hereafter with an issues.”); United States v. Eastern Med. Billing, Inc., 230 F.3d 600, 607-13 (3d F.2d 253, 259 (3d Cir. 1990) (exercising over which that judge presided in his or issue concerning the trial or conviction her former capacity as a state court judge. circuit recuse himself or herself from participating in a 28 U.S.C. § 2254 habeas [5] that each federal district court judge in this exercise our supervisory power to require recurrence of this situation, we now applicable statute, and in order to avoid the corpus petition of a defendant raising any Because of the absence of any parties and this court to understand the
legal premise for the court's order.”);
We thus shall vacate the District Court’s
decision to deny Clemmons’ habeas
petition as well as his petition for
appointment of counsel [6] and we will
remand with instructions that the case be
assigned to a different district court judge.
another court. The difference is
institutional rather than ethical. There is
no basis to apply the supervisory rule
enunciated here to the § 2255 situation. Because we will vacate and
remand each of the District Court’s
decisions based on the possible
appearance of bias, we need not reach
the merits of Clemmons’ argument that
the District Court’s denial of his motion
for appointment of counsel was deficient
for failure to include a statement of
reasons.
[5] Of course, nothing in this opinion, Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 81 (3d Cir. which relates only to the role of a federal 1982) (ruling that “a dismissal of a judge pursuant to 28 U.S.C. § 2254, is complaint with prejudice as a Rule 37 designed to apply to the role of a federal sanction must be accompanied by some judge under 28 U.S.C. § 2255. In fact, articulation on the record of the court's Rule 4(a) of the Rules Governing § 2255 resolution of the factual, legal, and Habeas Proceedings for United States discretionary issues presented”). In District Courts directs that a habeas particular, we have issued supervisory petition “be presented promptly to the rules on the issue of regarding the judge of the district court who presided appearance of judicial impropriety. See, at the movant’s trial and sentenced him . e.g., Alexander, 10 F.3d at 167 . . .” In contrast to the position of a (exercising supervisory power to reassign federal judge reviewing a § 2255 ERISA case to a different district judge); petition, who is effectively reconsidering Haines v. Liggett Group, Inc., 975 F.2d his rulings at the trial, a federal judge 81, 98 (3d Cir. 1992) (“[T]he appearance reviewing a § 2254 petition cannot of impartiality will be served only if an reconsider the actions taken by a state assignment to another judge is made, and judge, even if s/he had been the state we will, pursuant to our supervisory judge. In his or her new capacity, s/he power, so direct.”). would be reviewing the actions of