In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1031

HARRISON FRANKLIN,

Petitioner-Appellant,

v.

GARY R. MCCAUGHTRY, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 02-C-0278—William C. Griesbach, Judge.

____________

ARGUED JUNE 15, 2004—DECIDED FEBRUARY 24, 2005

____________

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. In February 1996, Harrison

Franklin was convicted by a Wisconsin court of armed

robbery, reckless endangerment, and bail jumping. To make

matters worse, at the time he committed these crimes he

was a repeat offender and free on bond pending his appeal

of a prior battery conviction. After exhausting his remedies

in the state courts, Franklin filed a pro se petition for a writ

of habeas corpus under 28 U.S.C. § 2254. The district court

denied the petition but granted a certificate of appealability

on the issues of trial-judge bias and ineffective assistance

of counsel. On appeal, Franklin alleges that the state court

judge was actually biased and that the Wisconsin Court of

Appeals’ rejection of this point was contrary to, and consti-
2 No. 03-1031

tuted an unreasonable application of, clearly established

federal law as determined by the Supreme Court of the

United States. Although the burden is high on habeas

corpus petitioners, we conclude that Franklin has met these

demanding standards here; we therefore vacate and remand

for issuance of the writ.

I

In 1996 Franklin was charged with armed robbery,

reckless endangerment, and bail jumping. His case was

assigned to Judge Bruce E. Schroeder, of the Circuit

Court of Kenosha County, Wisconsin. At the time, Judge

Schroeder was presiding over another case, State v. Taylor,

No. 95 CM 1326. In Taylor, Judge Schroeder had denied

Taylor release without bail and set an appeal bond. Taylor

sought relief from the Wisconsin Court of Appeals, alleging

that the appeal bond was contrary to the rule established in

State v. Lipke, 521 N.W.2d 444 (Wis. Ct. App. 1994). In

Lipke, the court held that a defendant cannot be denied the

right to release pending an appeal solely on the ground of

indigence. Lipke, 521 N.W.2d at 448.

In April 1996, Judge Schroeder took the highly unusual

step of filing a memorandum with the state court of appeals

in support of his decision to deny Taylor’s request for

release without bail. In that memorandum, he asserted that

the remarks in Lipke regarding the subject of bail were

dicta and therefore not binding precedent. He further

opined that Lipke would result in “absurd and unreasonable” outcomes “because the same indigent defendant

who is held pretrial for failure to post bail is entitled

to immediate release without cash bail upon establishment of his guilt.”

To illustrate his point, Judge Schroeder pointed to Franklin’s case. He began by stating, “I have also now pending

before me the case of State v. Harrison Franklin, 96 CF
No. 03-1031 3

126.” The judge then gave a detailed account of Franklin’s

five previous convictions, relying on information that he had

gleaned from a pre-sentence report in one of Franklin’s

earlier cases. The last conviction, in 1995, resulted in a

three-year sentence, but Franklin was released without

posting bail pursuant to Lipke. Judge Schroeder concluded

his point with the following statement:

Although the Court of Appeals accepted his attorney’s

no merit report on December 20, 1995, he was not

reincarcerated until February 21, 1996, when he was

taken into custody in a tavern where it is alleged,

according to the current file, that he stabbed one man

four times and another twice, during an armed robbery.

Franklin was convicted in May. In July, before sentencing, an article appeared in the Kenosha News titled,

“Legislators Oppose Freeing Indigent Without Bail.” The

article referred to two cases, Franklin’s and Taylor’s. The

article further reported that both Judge Schroeder and

Assistant District Attorney Dooley (the attorney who

prosecuted Franklin’s case) had sent their written challenges to the Wisconsin Court of Appeals.

Prompted by the article, Franklin moved to recuse Judge

Schroeder from further proceedings in the case “based on

the appearance of partiality and impropriety arising from

the Judge’s opinion of a defendant’s release pending appeal.” Judge Schroeder heard the motion to recuse prior to

sentencing. While Franklin was presenting his recusal

motion, Judge Schroeder interrupted Franklin and asked,

“What did I have to do with the article?” After Franklin

explained that the article had mentioned and quoted him,

Judge Schroeder changed tacks and asked, “What did I do

that suggests some lack of impartiality towards your

client?”

Judge Schroeder continued to deny that his impartiality

was in doubt, making this statement on the record:
4 No. 03-1031

I am really—I want, so the record is clear, because

I refuse to accept responsibility for what a reporter

wrote in the newspaper unless you are claiming that

I said this to this reporter or that I in some way acted

in a manner which suggests lack of impartiality towards the case of Mr. Franklin. I am not clear on what

you are claiming I said or did and under what circumstances that give rise to your claims.

He then asked Franklin, “Did you call this reporter and ask

the reporter where did you get the quotes that you attribute

to Judge Schroeder?” Franklin stated that he had, but the

reporter had not returned his call. After Franklin said that

his motion relied on the newspaper article, Judge Schroeder

finally admitted his role in the article and stated,

All right. Well, for the record a reporter did seek me out

with respect to this issue and I declined to discuss it.

When I say this issue, I am talking about the rule of the

Court of Appeals in State v. Lipke. I have no idea why

the reporter had an interest in the Lipke issue. 

I did absolutely nothing to stoke the fire with respect to

that decision. In the course of the written memorandum, which I filed in this case, I did make reference

to this case as it was then pending in writing. And

when I was approached by Mr. Krekowicz from the

newspaper, I did tell him that I had issued a written

memorandum . . . . And when he asked to interview

me, I declined an interview and told him that what

I had to say was already of record in the memorandum

which was in the file, which was 95-CM-1326. Now, in

that memorandum there is reference to Mr. Franklin’s

case.

At this point in the hearing, Judge Schroeder read aloud the

paragraphs of the Taylor memorandum that referred to

Franklin. This was the first time Franklin learned about

the memorandum.
No. 03-1031 5

Following Judge Schroeder’s reading of the memorandum,

Franklin commented that the court had included information in the memorandum that was not in the record of the

present case. Franklin argued that by reading the memorandum into the record, the information Judge Schroeder

had independently obtained was now a part of the record in

this case. Furthermore, Franklin pointed out that he could

not be certain about what information the court would be

relying on to determine the appropriate sentence in the case

at hand. 

Judge Schroeder denied the motion to recuse, stating that

he was not biased against Franklin and that the memorandum contained only factually accurate information. Additionally, Judge Schroeder emphasized that he had used the

word “allegations” in his references to Franklin’s pending

case:

And I agree with you that it would have been improper

had I said he was taken into custody in a tavern where

he had stabbed two people in the course of an armed

robbery. That would have been improper because

it would have suggested that I had already made a

conclusion about his guilt. But I do not feel that was

done.

Judge Schroeder agreed, however, that Franklin was

entitled to respond to the additional information and offered

the parties a chance to examine the record in the earlier

case. The parties chose to proceed.

Franklin was sentenced to 53 years’ incarceration, the

maximum sentence for both the armed robbery and the bail

jumping counts. He also received 16 years, the maximum

sentence, for the weapon charges, but the sentence was

stayed in favor of probation. If probation is revoked, the two

16-year terms must be served consecutively.

Franklin appealed his conviction and sentence on due

process grounds. He argued that the U.S. Constitution

guarantees a defendant’s right to be tried by an impartial
6 No. 03-1031

judge, and that his trial before Judge Schroeder violated that right because the judge demonstrated bias

when he referred to Franklin’s case in the Taylor memorandum. Franklin argued that Judge Schroeder “targeted” him

and “used him as an example” while his case was pending

before him. Franklin then requested that the court vacate

his conviction and sentence. 

The Wisconsin Court of Appeals affirmed Franklin’s

conviction. In addressing the recusal issue, the court

examined only whether Judge Schroeder should have

recused himself at sentencing; it never discussed Franklin’s

request that the court vacate his conviction. Applying State

v. Rochelt, 477 N.W.2d 659 (Wis. Ct. App. 1991), the court

first held that Judge Schroeder’s statement that he was not

biased against Franklin was sufficient to show that he was

not subjectively biased. Next, it observed that all of the

references in the memorandum, including those to Franklin’s criminal history and the “alleged” stabbing, were

factually accurate, and it noted that Franklin did not

dispute the accuracy of those facts. For these reasons, in the

court’s view, Franklin had failed to demonstrate that

recusal was necessary “under the objective portion of the

recusal test.” Franklin appealed to the Wisconsin Supreme

Court, which summarily denied his petition for review.

In 2002, Franklin filed his amended petition for a writ

of habeas corpus. The district court denied his petition,

stating that Franklin had not pointed to any Supreme Court

case that was unreasonably applied by the Wisconsin Court

of Appeals, and he also did not show “actual bias” on the

part of Judge Schroeder. The court then granted a certificate of appealability that included the issue of judicial bias

by Judge Schroeder.

II

An application for a writ of habeas corpus by a state court
No. 03-1031 7

prisoner must be granted if the state court adjudication

resulted in a decision that was “contrary to . . . clearly

established Federal law,” 28 U.S.C. § 2254(d)(1), or that was

“based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,” § 2254 (d)(2).

The Due Process Clause guarantees litigants an impartial

judge, reflecting the principle that “no man is permitted to

try cases where he has an interest in the outcome.” In re

Murchison, 349 U.S. 133, 136 (1955). Where the judge has

a direct, personal, substantial, or pecuniary interest, due

process is violated. Bracy v. Gramley, 520 U.S. 899, 905

(1997); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825

(1986); Ward v. Monroeville, 409 U.S. 57, 60 (1972); Tumey

v. Ohio, 273 U.S. 510, 523 (1927); Johnson v. Mississippi,

403 U.S. 212, 215-16 (1971); In re Murchison, 349 U.S. at

137-39.

The general presumption is that judges are honest,

upright individuals and thus that they rise above biasing

influences. Tumey, 273 U.S. at 532; Withrow v. Larkin, 421

U.S. 35, 47 (1975); Taylor v. Hayes, 418 U.S. 488, 501

(1974); see Tezak v. United States, 256 F.3d 702, 718 (7th

Cir. 2001); Del Vecchio v. Illinois Dep’t of Corr., 31 F.3d

1363, 1375 (7th Cir. 1994) (en banc); Jones v. Luebbers, 359

F.3d 1005, 1013-14 (8th Cir. 2004). “A person could find

something in the background of most judges which in many

cases would lead that person to conclude that the judge has

a possible temptation to be biased. But not all temptations

are created equal.” Del Vecchio, 31 F.3d at 1372 (internal

quote omitted). Nevertheless, the presumption is

rebuttable. Sometimes, “the influence is so strong that we

may presume actual bias,” Del Vecchio, 31 F.3d at 1375; see

Withrow, 421 U.S. at 47. In rare cases, there may even be

evidence of actual bias. See Bracy, 520 U.S. at 905; Bracy v.

Schomig, 286 F.3d 406, 411 (7th Cir. 2002) (en banc). To

prove disqualifying bias, a petitioner must offer either
8 No. 03-1031

direct evidence or “a possible temptation so severe that we

might presume an actual, substantial incentive to be

biased.” Del Vecchio, 31 F.3d at 1380. Absent a “smoking

gun,” a petitioner may rely on circumstantial evidence to

prove the necessary bias. Bracy, 286 F.3d at 411-412; id. at

422 (Posner, J., concurring in part; dissenting in part); id.

at 431 (Rovner, J., concurring in part; dissenting in part).

The question for us is whether the decision of the Wisconsin court’s finding that Franklin failed to show actual bias

was contrary to clearly established federal law, as articulated by the U.S. Supreme Court, or was based on either an

unreasonable application of established principles or an

unreasonable determination of the facts. See Williams v.

Taylor, 529 U.S. 362, 376 (2000). On direct appeal, Franklin

challenged his conviction and sentence on due process

grounds based on the federal Constitution’s guarantee of a

defendant’s right to be tried by an impartial judge. As noted

above, the Wisconsin Court of Appeals limited its analysis

to an assessment of his claim under the its own decision in

Rochelt, 477 N.W.2d 659.

Rochelt sets forth a two-part test to determine whether a

defendant’s due process right to an impartial judge has

been violated. Rochelt, 477 N.W.2d at 661. The first, a

“subjective” inquiry, is based on the judge’s own determination of his or her impartiality. Id. The second, an “objective”

examination, asks whether a reasonable person

could question the judge’s impartiality. Id. If, after the

objective inquiry, the judge’s impartiality appears questionable, Rochelt instructs courts to perform a harmless error

analysis. Id. at 662 & n.3. The Rochelt decision has little to

say about federal law; it acknowledges Aetna Life Ins. Co.

v. Lavoie, 475 U.S. 813 (1986) (holding that a state supreme

court justice’s participation in a case violated the appellant’s due process rights, where the justice had a direct,

personal, substantial, and pecuniary interest in that case)

in a footnote, but it did not specifically discuss Aetna Life or
No. 03-1031 9

any other U.S. Supreme Court case in analyzing Rochelt’s

claim. 477 N.W.2d at 662.

Limiting the inquiry into judicial bias to the Rochelt test

was inconsistent with the governing decisions of the U.S.

Supreme Court. Both components of Rochelt look only

for bias that resulted in demonstrable prejudice to the

defendant. 477 N.W.2d at 662 (“A litigant is denied due

process only if the judge, in fact, treats him or her unfairly.”) (internal quote omitted). After applying the two

components, if the court finds evidence of actual partiality,

it then applies a harmless error analysis. Id. (“[E]ven

though the trial judge’s letter raises a reasonable question

regarding the judge’s impartiality, the fact is that Rochelt

received a fair trial and therefore, the judge’s refusal to

recuse himself was harmless error.”)

We conclude that the Rochelt analysis is contrary to

clearly established federal law for two reasons. First, as

Judge Evans of this court observed in his opinion for two

different majorities of this court in Bracy v. Schomig, 286

F.3d at 410-11, the Supreme Court has decided that both

actual bias and the appearance of bias violate due process

principles. See Bracy, 520 U.S. at 905 (actual bias); Tumey,

273 U.S. at 535 (actual pecuniary interest and thus actual

bias); Aetna Life Ins. Co., 475 U.S. at 825 (“The Due Process

Clause ‘may sometimes bar trial by judges who have no

actual bias and who would do their very best to weigh the

scales of justice equally between contending parties.’ ”)

(citing In re Murchison, 349 U.S. at 136). Second, where

there is a structural error, such as judicial bias, harmless

error analysis is irrelevant. See Edwards v. Balisok, 520

U.S. 641, 647 (1997); Bracy, 286 F.3d at 414; Cartalino v.

Washington, 122 F.3d 8, 9-10 (7th Cir. 1997).

Furthermore, even if Rochelt is better understood as a

decision that is not squarely contrary to the law as announced by the U.S. Supreme Court, we conclude in the
10 No. 03-1031

alternative that the Wisconsin Court of Appeals unreasonably determined that Judge Schroeder was not actually

biased. Our alternative ruling is not based on the trial

rulings that Franklin has criticized, which we find too

ambiguous to be of much use. Instead, it is based on the

references in the Taylor memorandum to Franklin’s

pending case, particularly as seen in the light of the judge’s

obvious reluctance to admit to Franklin that he had written

the memorandum at all or that he had been asked about it

by the reporter.

In the Taylor memorandum, Judge Schroeder included

Franklin as an example of the terrible things that happen

when indigent prisoners are released on bail pending

their appeals: they simply commit more crimes while

free. In context, despite the judge’s use of the magic word

“alleged” in the memorandum, the inference is irresistible

that the judge was pointing to Franklin as the latest

such incorrigible criminal, even though Franklin’s trial had

not yet taken place. This is powerful circumstantial evidence that Judge Schroeder had pre-judged Franklin’s case.

We note as well that, for purposes of the rule in Liteky v.

United States, 510 U.S. 540 (1994), the Taylor memorandum and Judge Schroeder’s contacts with the newspaper

were extrajudicial activities vis-à-vis Franklin’s own case.

The Wisconsin court nonetheless concluded that the

memorandum and the trial rulings did not raise any

reasonable questions regarding Judge Schroeder’s impartiality. In essence, the court held that Judge Schroeder was

not biased because he said that he was not biased and the

facts that he included in the memorandum were true and

not disputed by Franklin. But, under the Supreme Court’s

decisions in cases like Tumey, Ward, Aetna Life, and

Murchison, the judge’s own word for the presence or

absence of bias is never enough, nor is it particularly

probative that various historical facts the judge recites are

accurate. In our view, no reasonable trier of fact could fail
No. 03-1031 11

to infer actual bias here. Judge Schroeder’s motive in citing

Franklin in the memorandum is clear— prisoners released

under Lipke are free to commit more crimes. The memorandum demonstrates that Judge Schroeder decided the issue

of Franklin’s guilt long before trial. Therefore, the state

appellate court unreasonably applied the Supreme Court’s

bias rules to the facts of Franklin’s claim.

Although Judge Schroeder asserted that he would have

cited Franklin’s case in his memorandum even if

the robbery had never occurred, this claim defies reason.

Had Franklin not committed an offense while on release,

his case would have offered no support whatsoever to Judge

Schroeder’s criticism of Lipke. The value of Franklin’s case

to Judge Schroeder’s position lay in the fact that Franklin,

out of custody because of Lipke, committed another violent

crime, one that could have been prevented had he been

incarcerated while awaiting appeal. We cannot contemplate

any situation where acquitting Franklin or convicting him

of a lesser included offense would have helped Judge

Schroeder to make his point.

We are not saying that due process would be offended if

a judge presiding over a case expressed a general opinion

regarding a law at issue in a case before him or her.

Withrow, 421 U.S. at 48-49; see Del Vecchio, 31 F.3d at 1377

n.3. The problem arises when the judge has prejudged the

facts or the outcome of the dispute before her. In those

circumstances, the decisionmaker “cannot render a decision

that comports with due process.” Baran v. Port of Beaumont

Navigation Dist. of Jefferson County Tex., 57 F.3d 436, 446

(5th Cir. 1995); see Trust & Inv. Advisers, Inc. v. Hogsett, 43

F.3d 290, 295 (7th Cir. 1994); Yamaha Motor Corp., U.S.A.

v. Riney, 21 F.3d 793, 798 (8th Cir. 1994). Compare United

States v. Microsoft Corp., 253 F.3d 34, 108-10 (D.C. Cir.

2001) (disqualifying district court judge who gave interviews to the press about his views of government civil suit

pending before him). Here, the only inference that can be
12 No. 03-1031

drawn from the facts of record is that Judge Schroeder

decided that Franklin was guilty before he conducted

Franklin’s trial. This is a clear violation of Franklin’s due

process rights.

III

Because Judge Schroeder was actually biased, Franklin

is entitled to a new trial. See Edwards, 520 U.S. at 647;

Bracy, 286 F.3d at 414; Cartalino, 122 F.3d at 9-10. Accordingly, we VACATE and REMAND this case with instructions

to grant Franklin’s petition for habeas corpus unless the

state institutes proceedings to re-try him within 60 days.
No. 03-1031 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-24-05