2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

5-24-2004 

# J ohnson v . C a r r ol l

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-2101

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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IN T HE UNI TED ST ATES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

____________ No. 03-2101

____________ RONALD N. JOHNS ON

v.

THO MA S J. CARRO LL, Warden; ATTORNE Y GENERAL OF THE STATE OF DELAWARE

Tho mas Carr oll, Appellant

____________ Appeal from the United State s District

Cou rt For the D istrict of Delaw are D.C. No.: 02- cv-00562 District J udge: Honorable Joseph J. Farnan, J r., Chief Judge

____________ (Argued: February 24, 2004)

Before: RENDEL L, BARR Y and RO SE NN , Circuit

Judges
(Fil ed May 24, 2004)
Thomas E. Brown (Argued) Off ice of A ttorney General o f Delaw are Department of J usti ce 820 North French St

reet Wilmington, DE 19801 Counsel for Appellant
Joseph M. Bernst ein (Argued) 800 North King Stre et, Suite 302 Wilmington, DE 19801
Counsel for

Appellee

____________ OPINI ON OF THE COURT

____________ ROSENN , Circ uit J udge.

This appe al r ai ses an i nteres ting questi on under the recent enac tment of t he Antiterrori sm and E ffec tive D eath P enalty Act of 1996 (AEDPA ) pert aini ng to the failure of a state judge t o recuse h imse lf because his im partiality mig ht reas onab ly be questioned . A grand jury in Delawa re indicted T homa s Carrol l for t he theft of prop erty valued i n excess of $1000, possessi on of a deadlyweapon by a per son pr ohibited, and s evera l other re late d

cr ime s. After a trialto a jur y, he was

conv icte d of the weapon charge and the lesse r include d ch a rge of aggravated menacing. He wa s acq uitte d of all ot her charges. H e was sentence d to eighteen years impris onment as a habitual off ender. The State Supreme Court af fir med his conviction and sen tenc e. Johnson v. State , 797 A .2d 1206 (t able), 2002 WL 714520 (Del. Ap ril 22, 2002).

Withoutfili ng any pos t-convi ction motion in the s tate court, Johnson fil ed a petit ion for a writ

of habeas corpus in the United States D istrict C o urt for the Dist rict2

of Delaware und er 28 U .S.C. § 225 4(d). 1 The Distri ct Court c onditi onally gr a nted Carroll’s petit

ion for habeas relie f

as to h is sentence , concl uding that there e xist ed an

a ppear ance of bias on t he part of

the sentenci ng judge. Johnson v. Carr oll , 250 F. Su pp. 2d 395 (D. Del. 2003) . The Distri ct Court ordered the State to gr ant Johnson a n ew sentenci ng hearing. The Sta te timel y appea led. In li ght of th e stri ngent pr ovi si ons of AEDPA, we
reverse and d irect the D istrict Co urt to dismis s Johnson’s habeas petiti on.

I. A.

The re le vant fact s regar ding Johnso n’s conviction a nd senten ce are und is puted. The charges se t fort h in the indict ment s t emmed from the all eged kidnaping of his estr anged sixteen -y ear-ol d daugh ter, Karen Vincent, on October 6, 199 7. Imm ediate ly before sentencing Johnson following his conv iction, the state court tri al judgeheld a confe rence with both the prose cutor a nd d efen se co unse l in his cham bers. T he jud ge vo luntarily discl osed that he “had an out-of -court conversation” with Jam es Liguo ri , a Del aware attorne y and fo rmer state prosecuto r, at a soci al function at Liguori’s home. “As you bo th kn ow Jim L iguo ri, if you see h im, he talks about case s allthe tim e.” The judge informed counsel that Liguori made a comment abo u t Johnson during their

conversation. As r elat ed by the jud ge, L i guori commented t hat Johnson was a “ bad guy, ” that he had “threatened” Liguori and h i s family , and that Ligu ori “w anted to see that j usti ce was done.” The judgeassured c ounsel t hat he belie ved that L iguo ri’s com men t wo uld not have any impact on hi s view of th e case or hi s pending se ntenci ng decisi on.

Defense counsel at

the time, Sand ra Dean, a pu bl ic def

end er , wh o ha d be come Johnso n’s tri al counselmid-way t hrough trial, volu ntarily informed the judge of the backg round inform ation re gard in g Johnso n’s al le ged threat to L iguori eighte en year s before, in 1 981 . Ligu ori, then a state prosecutor , prosecut ed Johnson in an unr elate d m atter

. Johnson, h aving been convicted and impri soned , s ent a Christmas card to Li guori i n 1981. The Christmas card rea d: “You had f un in ’81 and will befr ee i n ’83.” J ohnson escap ed from pris on, and i t was debate d then w hether he posed a thr eat , presu mab ly to Ligu ori and his family . The judge told Dean that he had no knowledge of the backgr ound info r mation that she had justrelated and commented that it per haps explai ne d why Liguorimade the c omment s abo ut Jo hns on.

Dean then inf

ormed t h e judge that the local newsp a pers had r eported t he purport ed threat a t that time and th a t the 1 The resp onden t-appellants are Tho mas Carr oll, wa rden of the state prison where Johnson is jail ed, and the AttorneyGeneral of the Stateof Del awa re . T o s im pl if

y re fe re nc e, we refer to them as theState of Delaware.3

Pub lic Defender’s Offic e had incl uded the

new spaperclippi ngs among the document s subm i ttedto the c ourt in r elation to Johnso n’s present

tri al. Dean assured the judge that Johnso n’s 1981 Christmas card

was part of “ public record.” T he judge and Dean both agreed t hat thepurport ed threat was wel l documented and that the docu men ts were all in the “ whole fil e” earli er su bm itted to th e co urt.

The state prosecutor, R obert O’N eill, in turn me nt io ne d hi s o wn “recol le ction” of Johnson’s purport ed threat to Liguoriand his fa mily. He then tol d the judgethat Li guori’ s comment about Johnson’s c haract er was releva nt to the court i n meting out

the sentence to him because he was charged as a “ habitua l offend er” und er sta te law . H e informed t he ju dge f urther that the cour t shou ld consider Johnson’s propensity for violenc e and hi s entire c rimina l history in determi ning the te rm of sentenc e. He also told the judge that

Ligu ori arg uably co uld be presented a s a witness a t Johnson ’s sentenci ng hearing.

Fi na lly, in response to O’N eill’s questi on as to whether she in tende d to file any motion regarding t he ex pa rte communicati on discl osed by the judge , Dean tol d the judge she had no s uch intent ion because the alle ged inci dent was “n othi ng new ,” “a ma tter o f rec ord ,” “happened a long ti me ago,” and the judge had indicated that he wo uld n ot give it

“ any undue weight. ” Dean told the jud g e also that s he would discus s the matter with Johnson and e xpre ssed d oub t t hat he wo uld req ues t a dif ferent judge for t

he pending sentenci ng. The judge concluded the conference by

stating that

he would not allow Liguori to b e a witness at Johnson ’s sentenci ng hearing.

B.

Johnson obtai ned new counsel and appealedhis convi ction and se nt en ce . A s to Johnson’s s entence, the Del aware Supreme Cou rt r ejected his cl aim that the tri al judge had erroneousl y fai led to recuse hims elf sua sp onte . The court analy zed the issue first un der the De la wa re Judges’ Co de o f Judici al Conduct and found t he situationwas not one of thos e enumerated i n th e Co de tha t wo uld m anda te recu sal. Johnson v. State , 2002 WL 714520, at *3. The court an aly ze d the issue then under a tw o-pro ng test

set forth under i ts pri or decisions. Id. ( c iti ng Stev enso n v. S tate , 78 2 A.2 d 24 9, 255 (De l. 2001 ); Los v. Los , 595 A .2d 381, 384 (Del. 199 1)). U nder the subj ecti ve prong, t he cour t
n o ted the trial j udge’s st atement t hat “I d on’t view [the cont act] to have a n y impac t on m y view of the c ase or m y decisi on with regard to sentencing, ” and found it s uffici ent. Under the obje ctive prong, the court did not find any

“ appearance of bias s uffici ent to c aus e doubt as to the ju dge ’s im par tiality.” S pe cif ica lly, the court

observed that the “[trial] jud ge did not en gage in any acti ve conductdemonstrating the appearance of imp rop riety.” Id. (emphasis a dde d) (dist inguis hing this cas e fr om Stevenson , 782 A.2d at 251, 2 57 n.3 (fi nding appearance of impropri etywhen a judge4

who had pr e viou s con tact w ith a vic tim affirm atively requ ested th at t he case be assi gned to him)) . The court observed additio nally that J ohnson’s pr evious counsel at tria l adm itted , a nd h is new counsel on appeal di d not deny, that t he record in his case a vaila ble to t he tri al court had alre ady cont ain ed a m ore detai led account of hi s all ege d thr eat to Lig uor i. Id.

The Distri ct Court i ssued an order and opin ion ru ling ag ainst Jo hnso n as to his conv iction b ut in favor of him a s to his sentence

. John son v . Carro ll , 250 F. Supp.2d at 398. Speci fical ly, t he cou rt agreed with Joh nson that the trial cou rt judge erron eous ly failed to recus e him self

sua spon te from sentenc ing Johnson following his vol untarydiscl osure that he had receiv ed an out-o f-cou rt ex pa rte
co mmunication from a former pr osecutor reg ard ing Joh nso n. The court agr eed that the f ailure to do so created an appe arance of bias on the part

of the j udge in viol ation of Johnson’s due process rights u nder the United States Consti tuti on.

II. It is not disput ed that

Johnson had exhaustedhis state remedy prior to h is initiati on of the underly ing federalhabeas acti on. It is also not

disput ed that

AEDPA g overns a fed eral co urt’s rev ie w o f Johnso n’s habeas action. The D ist rict Cou rt hadsub

je ctma t ter j urisdi ction unde r 28 U.S .C. § 22 54. W e hav e app ellate ju risdi ctionunder 28 U.S.C. §§ 1291 a n d 2253. The questi on of

whether the Distri ct Cour t a ppropriatelyappl ied t he AEDPA standard o f revie w is a question of la w

subject to revi ew by this C ourt de novo

. Chadwick v. Janecka , 312 F.3d 597, 605 n.6 (3d C ir. 2002).

A. A EDPA severely circumscribes a federalhabeas cou rt’s review of a s tate court decisio n. A ED PA prov ides in releva nt part:

An applic ationfor a writ of habe as corpus
on behalf of a per so n in cust ody pur suant to the jud gm ent of a State c ourt shallnot be grantedwith res pect t o any cl aim that

wa s adjud icated on th e me rits in State court proceedings unless the adj udication of t he c la im— (1) resul ted in a decision that was contrary to , or invol ved an unreasonab le applic ati on of, clearly estab lished F edera l la w , a s determi ned by the Supreme Court of the United States ; or (2) resulted in a decisi on that was based on

an unreasonabl e determinati on of the facts i n light of the evi dence prese nted in t he State c ourt pr oceeding.

28 U.S.C. § 2254(d) (emphasis ad ded). The determ in ation of

what consti tutes “clear ly establ ished f

e deral law” is a “thresh ol d que stion in § 225 4 ca ses.” Lockyer v. Andrade , 538 U.S. 63, 71 (20 03)

.
The statutory ph rase “c learly established” is defined as follows: Section2254(d)(1) ’s “cl early establ ished” phrase refers to the holdings , as oppos ed to the dicta, of [the S uprem e] C our t’s5

decisi ons as of the ti m e of the r elevant state-court dec ision

. . . . In other words, “cl early established Fe deral law” under § 2254(d)(1) is the go vern ing leg al princ iple

or pr in cip les se t fo rth by t he Supreme Cou rt at the time the state cou rt rend ers its decisi on.

Id. at 71-72 ( ci tati ons o mitted ) (em phas is added) (internal quotati on marks o mitted).

The statutoryphrase “cont raryto” is defined as follows: [A] state court decision is co ntrary to [the S upre me C ourt’s] c learly establ ished prec e dent if the state court applie s a rule that co ntradic ts the go vern ing law set for th in [the Supreme Court’s] cases or if the state court conf

ronts a set of f act s that are mat eria l l y indisting uisha ble from a decis ion of [the] C ourt an d nevertheless arri ves at a resu lt d iffere nt from [the C ourt’s] p reced ent.

Id. at 73 (i nternalquotati on marks

om itted ).

The st atutor

y ph rase “unreasonabl e application” is defined as follows: [U]nder the “unreaso nabl e
a pplication” clause, a feder a l habeas c our t may gra nt the w rit if the state court i dentif

ies t he correct governing legal princi ple fr om [the S upreme] Court’s de cisi ons but

un reaso nably applie s that pr incip l e to the fact s of t he pris oner’s c ase. The “unreasonabl e appli cati on” clause requ ir es the state court decisi on to be mo re th an incorrect
or erroneous . The sta t e court’s applic at ion of clearly establ ished law m ust be objec tivel y
unre ason able

. . . . It

is not enough that a federalhabeas cou rt , in its independen t review of the legal questi on, is l ef

t with a “firm conviction” that the state court was “err one ous .” [The Sup r eme C ourt has] held prec isel y the oppo sit e: Under § 2254 ( d )(1) ’ s “unr easo nable applic ation” c l ause, then, a federalhabeas court may not issue th e w rit si mply because that court co nclud es in it s independent

judgment that t

he rel evant st ate-co urt dec isio n applie d c le arlyestabl ished fede ral law er ro ne ou sly o r in co rre ctl y. Rather, that application must be obj ectiv ely un reas ona ble.

Id. at 75-76 ( citations omitt ed) (emphases added) (internal quotati on marks o mitted).

B. The Distri ct Court a cknowledged that it was bound by AEDPA’s stri ngent standard in revie win g the m erits of Johnso n’s habe as cla i ms. Th e court agreed with Johnson t hat th e Delaw are Supr eme Co urt’s de cision w as “co ntrary to
or an unreasonabl e appli cati on of federal law and an unreasonable appl ication of the facts in li ght of the evi dence.” Johnson v. Carr oll , 250 F. S upp . 2d a t 40 3.

The Distri ct Court and Johnson6

reli ed on thr ee Un ited S ta te s Su pr eme Cou rt dec ision s, In re Murchis on , 349 U. S. 1 33 (19 55) , Liljebe rg v. H ealth S ervic e s Acquisition Corp. , 486 U .S. 847 (198 8), and Litekyv. Unite d States , 510 U.S. 540 (1994). 2 The Court agreed wit h Johnson that the trial judge’s failure to r ecuse hims elf sua sp onte gave ris e to an appearance of bias and t hat the appearance of bias vi olat ed his due process rights. The Court wrote:

In this cas e, it appe ars to the Cou rt that the D e laware S uprem e Cou rt limi ted its analy sis to the acti ve conductof t he tri al judge , an analysis which is i nconsistent with the concept of an appe aran ce of bias. In addition, the C ourt did not

co nsider the impac t of Liguo ri’s comment s that “ he wanted to se e t hat justice w as do ne.” In th es e circumstances, Liguori’s e x parte “sentenc ing r ec ommendation ”

co uld we ll create a situation in which a reason able observ er w ould q uesti on the trial j udge’ s im pa rtia lity. Bec au se th e Delaw are Sup reme Co urt lim it ed its analysis to the active conduct of the judge, it di d not consi der th e reaction of the reaso nable observer and the rel ated ri sks of inj usti ce t o the parti es and undermini n g the public’s confi d ence in the judic ial process that result

from the continue d partic i pation of a judge in a proc eedin g des pite the judge’s appearance of

bias

. See Stevenson [v. State ], 782 A.2d [249, 258 (De l. 2001) (en banc )]. Thus, the C ourt conclud es that th e Delawar e Supreme Court deci s ion was not entirely consistent with f ederal law and was not a rea sonab l e applic ati on of the fact s in l ight of the evi dence

.
Johnson v. Ca rroll , 250 F. Supp. 2d at 404 (emph ases adde d).

C. Johnson has not asse rted, and there is no ev id enc e, that the tri al judge harboredan y actualbias t oward hi m . H e argued, and the Dist

rict Court agree d, that the ex pa rte com mu nicatio n crea te d an appearance of

bias and t

hat theappearance of bi as vi olated his du e pro cess rig hts und er th e U nited Sta tes C ons titutio n.

Unde r the plain langua ge of § 2254(d ), as well as the Uni ted States Supreme Co u rt’s case law, w e are presented only with o ne narrow iss ue: whet h er the S upre me C ourt h as ev er held in anyof i ts dec is io ns e xi stin g at th e t ime of the District Cou rt’s judgment, includi ng the three c ases re lied on by Johnson and the Distri ct Court, that an ap pe arance of 2 The Distri ct Court a lso re lied on Stev enso n v. S tate , 782 A .2d 24 9 (D el. 200 1), to sup por t its co nclu sion

. Bec ause § 22 54(d )(1) ex pressly lim its federallaw juri sprudence t o decisi ons by the Unite d States Supreme Court, the state court c ase willbe disr egarded i n our
re vi ew.7

bias on the part

of a state court j udge, withoutmore, violates t he D ue Process Clause of the Unit ed State s Constit ution. We are not, and cannot be, concerned with the issues of whether the trial judg e sho uld have recused hi mself sua sp onte or whe therthe ex pa rte communicati on a t issue was suffici ent to c onsti tute an appearance of bias. We assume thatthere was an appearance o f bias.

We note first that the D istrict Court has signi ficantly changed the sta tutory language of § 2254( d) in i ts pre sentation of the issu e bef ore it. Th e phr ase “c learly establ ished” was noticeably absent i n the court’s present ation of the § 22 54(d)(1) prong, and th e cou rt s u bsti tuted t he stat u t ory phrase “unreaso nabl e determi nationof the fact s in l ight of t he evidence” with the ph rase “u nreas onab le applic ationof the facts in li gh t of the evidence” in i ts pr esentat ion of the § 2254(d)(2) prong. See Johnson v. Ca rroll , 250 F. Supp. 2d at

40 4. Because t

he AEDPA stand ard is stric t, th e Cou rt’s omiss i on and deviation were erroneous and disto rted its an alysis.

We note al so that

despite i ts present ationof the § 2254(d) (2) prong, t he Distri ct Court did not analy ze the Delaw are Supreme Cou rt’s decisi on under that prong. The reason is obvi ous: the de cisi on of the state app ellate court di d not, and coul d n ot, i nvolve an y “determinati on of fa cts ” regardi ng the undisput ed ex pa rte communicati on at issue. Nor did the state court’s de cisi on involve any “u nr easonable applic ation of th e fac ts, ” as expres sed by the Dist rict Co urt. The stat e court a djudi c ated Johnso n’s appeal of hi s sente nce under the Delaw are Judges’ Code of Judici al Conduct and its own case law regardi ng the recusal standard for Delaware judges.

As conced ed by the D istrict Court in its late r dec isi on to grant the state’s motion for an enlarg eme nt of th e stay of its ju dgme nt pend ing the resolu tion of this appe al, its earli er deci sion granting habe as reli ef “ wa s based on an analogyto Supreme Court cases related to the issue of recusalunder 2 8 U.S .C. § 455 [for federal judges] and not on direct pre cedentrelated to the trial j udge’s appear an ce of bias

u nde r the Due Process Clause. ” Johnson

v. Carro ll , No

. 02

- 56 2 - JJ F, 20 03 WL 22136302 at *1 (D .De l. Sep t. 10, 2003). (emphase s adde d.) Th is belate d reali zati on w as tant amount to an admi ssion that none of the Supre me Court decis ions reli ed on by the Dist

rict Court in i ts earlier decisi on “clearly established” that me re appearance of bias, without more, violates the Due Process Clause

. Our own reading of the case s sh ows that t

hey do not

stand for any s uch holding, and we are notaware of any othe r Sup reme Co urt dec isio n t hat has so h eld.

The Supreme Court hel d in I n re Murchison , 349 U.S . 133 ( 195 5), that it

was unconsti tuti onal for t he sam e s tate judge, after a full he aring in open cour t, to punish contempt, previous ly committed be f ore him while acting as a one- man

“judge-gr and jury” perm itted un der th e n Michigan laws. “It would be ve ry strange8

if our sy stem of la w permitte d a jud ge to actas grand j ury and then tr y the very persons accu sed a s a resu lt of hi s inv estig ation s.” 349 U.S. at 137. The C ourt c oncluded that “no man can be a judge in his own c ase an d no man is permitted to try c ase s where he has an interest i n the outcome.” Id. at 136. That conclusi on was ba sed o n “the basic requ ir e ment of due process ” that the de fend ant receiv e “[a ] fair trial in a fair tri bunal. ” Id. The Court commented that althoughfairne ss cert ainly required “an absence of actualbias, ” “our sy stem of law has alw ays endeavored t o preventeven the pro bab ility of u nfa irne ss.” Id. The C ourt acknowledged that

its “stringent r

ule may sometimes bar trial by

judges who have no actualbi as an d wh o wou ld do their very best to weigh the scales of justice equa lly b etween conte ndin g parti es.” Id

. How ever, “to perf

orm its high fun ction in the best way justice must s atis fy t he

a ppearance of justice. ” Id . (i nt erna l quo tatio n m ark s om itted ).

The Distri ct Court and Johnson reli ed on the ab ove lang uage to su pport their conclusi on that

an appearance of bi as violated the D ue P roc ess C laus e. In re Murchison does not st and for that broa d conclusi on. Ins te ad, i ts hol ding, a s opposed to dicta, is c onfine d to the basic consti tuti onal princi ple of proh i biti ng a judge from adjudi cati ng a case where he

was als o an investigat or fo r th e gov ernm ent. The rest of th e l anguage quoted in t

he precedi ng paragraphmere ly explai ns the holdi ng. Even a general ized reading of

the holdi ng, that a judge cannot adjud icate a case w here he has an interest in the outc ome, does not stand for

th e conclusi on, drawn by the Distri ct Cou rt and Johnson, t

hat a j udg e w ith an appearance of bias, withou t mo re, is required to recus e himself sua sp onte under the Due Process Clause

. Johnson has not all ege d, and there i s no evidence , that the trial j udge here had a per sonal inter est in the o utco me of th e se nten ce.

The Suprem e Co urt hel d in Liteky

v. United States , 510 U.S. 540 ( 1994), t hat recusalunder 28 U.S.C. § 455 (a) was subject to the l imit ation k nown as the “extra judici al sourc e” do ctrin e or factor. That statu te re quires a federaljudg e to “disqual ifyhimsel f in any pro ceed ing in which his impa rtiality might re ason ably be que stion ed.” Spe cificall y, the Cou rt concl ud ed that apart from surrounding

com men ts or accompany ing opini on, evidenci ng such “deep-seated favoritism

or antagon i sm” as w ould mak e fair judgmen t impossi ble, jud icial ruli ngs alon e “cannotpossibl y show rel ian ce u pon an extraj udicia l sou rce.” Id. at 555. In additi on, opinions formed by t he judge on the b asis of fa cts introd uced or ev ents occurri ng during cu rr ent or p rio r proceedi ngs are not ground s for a recusal motion unless t

hey displ ay a s imil ar degree of f avo ritism or a ntag oni sm

. Id.

The Litekyholding is l imit ed to the interp ret ationof the re cusal s tandard unde r § 455 (a) f or f ede ral ju dge s. F acially, it does not st and for t he co nc lu si on, dr awn by the Dist

rict Court and Johnson, that appearance of b ias alon e on th e pa rt of a9

state judge mak es that j udge’s deci sion subject to feder al habeas revi ew un der § 2254(d )(1). To the extent that t he holding is relev ant, i t u ndercuts , rat her than supports, Johnson’s c laim. Johnson has not all eg ed, and there is no evidence, that the tria l ju dg e h ar bo re d a ny d ee p-seated antagonism toward him. It is not disput ed that Johnso n’s alleged threat to L iguori

was docu men ted in th e reco rds av ailable to the trial judge prior to the sentencing. Under Lite ky , an op in io n f or m ed by a federaljudge, which the j udge h ere was not, on the basi s of facts intr oduced at trial, would not be grounds for arecusal motion, even had one been fi led by Joh nso n.

Sim ila rl y, the Sup reme C ourt’s holding in Lilj eberg v. Heal th Servi ces Acquisition Corp. , 486 U.S. 847 (198 8), is limi ted to an interpret ation of the rec usal standard for federaljudges un der § 45 5(a),

as i t rel at ed to thespecifi c facts of the

case. In that

cas e , a feder al judge conducted a ben ch trial in volv ing a d ispute

over the o wner ship of a cor porati on formed by t

he defendant i n that

acti on for the purpose of constructing and operating

a hospit al. The judg e issue d a ve rdict in favor of the defendant. The judge had been a member of the boar d of a univ ersity and regularly atte nded its meetings. At the ti me of the trial invo lv in g the d efen dant, the judge knew that

the defend ant h ad nego tiated ex tensive ly with the univ ersity regard ing t he purchase of a piece of r eal estate property owned by the univers ity for the construction of

the propos ed h o spital. The judge al so knew atth e t ime of the trial th at the unive rsit y had j ust appr ov e d

re op ening nego tiations w ith the d efen dant.
Following two days of tri al, the judge im m ed iat ely a nnounced his intent ion to rule for

the defendant . After t he t rial, but befo re issuin g the v erdic t, the judge did not at

tend a univers ity

board meeti ng, which discu ssed th e term s of a sale agreementwith the de fendant. The pr o posed agreement pr ovided that the agree men t wo uld b e void if the defendant fail ed to retain the dis pute d ownership of the corporation. The j udge did not read the minu tes of th at me eting u ntil he ha d rend ered ju dgm ent fo r the de fend ant.

U nder the circ um stance s of th a t case, the Supreme Court concluded that the judge’s parti cipation i n the case creat ed a str ong appe aranc e of im prop riety and plainl y vi olate d § 455 (a), even if he lacked a ctual knowledge of th e university’s interest

in th e ou tc ome of the dispu te inv olv ing the d efe nda nt. Id. a t 859. Specifi call y, the C ourt hel d that t he purpos e o f the sta tute, to p rom ote pu blic confidence in the i nt e grity of t he judic ial process, did n ot dep end o n w heth er the judge ac tu al ly

kne w o f the fact s creating

an appearance of i mpropriet y, so long as the public mi ght reasonabl y bel ieve that he kne w. 3 Id. at 859-60 . The C ourt

3 The Court pointed to four fa cts t hat migh t cause an ob jective o bserv er to questi on the judge ’s impartial ity and justifythe Court’ s decis ion to af firm the vacati ng of the j udgment in favor of the10 con cluded that t he facts of that

ca s e warrantedthe a ppli cati on of § 455(a) because the vio latio n was “neithe r insubs tan tialnor excusabl e.” Id. at 867. Although the jud ge did not k now of h is “fiduciary interest i n t h e lit igati on, he certain ly should have known.” Id. at 867- 68.

It is obvi ous that the Liljeberg Cou rt’s ho lding is lim ited t o a n interpre tati on of §455(a) governing r ecusa l of fede ral judg es an d bas ed on the sp ecific facts of that

case, wherethe judg e ’s putati ve fiduc iary interest in t he o ut come of the li tigat

ion, as being a member of the univ ersity boa rd, con flicted w ith his judici al obligat

ion to be free of act

ual and percei ved imp artia lity. E ven though the Cou rt mentioned t

hat the concern for t

he integrity of judges had “ consti tuti onal dim ens ion s,” id. at 865 n.12 (ci ting Aetna Life Ins. Co. v. La voie , 475 U.S. 813, 825 (1986) (citing Mu rc his on , 349 U.S. at 136)), its holding was not based on the Due Pro ces s C laus e. Lilj ebe rg neithe r holds nor sugge sts t

hat an appear ance of bias on the part of a

federaljudge, without

mo re, v iolat es th e D ue P roc ess C laus e.

In contras t to t

he federaljudge i n defe ndan t und er Fe deral R ule of Civil Procedure 60( b)(6). First , in vi ew of the financial imp ortance of the defen dant’s project to the uni versi ty , it

was “remarkabl e” that

the judge , who had regularly atte nded the meeti ngs for the univers ity

board for a dec ade, “completel y for got” about the univers ity ’s interest

in having a

hospit al

con struc ted o n its p rop erty. Id. at 86 5. Seco nd, it w as an “unf ortun ate coinci dence” that

although t

he judge had regularly attended the un iversity board’s meetings, he did not attend t hat part icular post-t rialmeeting t

hat dis cussed and approved the terms of t

he sale a greement with the de fendant. The minutes of t hat meeting were mai led to t he judge four days before he i ssued judgment ; if he had opened the envel ope upon recei pt, he would have b een under a duty to recuse him selfbef ore he r end ered jud gm ent. Id. at 866. Third, it was “remarkable, ” and “quiteinexcusabl e,” that thejudge fai led to recus e himself

after he had final ly read the minut es. “A fulldiscl osure at that time would have compl etel y r emoved any basis for que stioning the judg e’s impa rtiality and w ould have mad e it possibl e for a di fferent

judge to de cide whether the interests—and appearance—of justice would have bee n served bya retrial. ” Id. By his sil ence, the jud ge de prived the pla intiff o f a ba sis for making a timelymotion for a new tri al and al so depri ved it of an issueon dire ct ap pea l. Id. at 867. Finall y, when the pla intiff’s c oun sel filed its mo tion to vacate, the judgesti ll di d not acknowledge that

he had known about the un iversity’s intere st both shortly befo re and shortly afte r the trial. N or did he ind icate an aw arene ss of a duty to recuse hi mself aft er he had re ad the min utes

. Id.11

Lilj ebe rg , the state trial judge here

vo luntarily di sclose d the ex part e communicati on that hehad recei ved from

a non- par ty prior

to sentencing Johns on, providi ng him with a basi s for making a timely mot io n fo r recus al. In co ntrast to Lilj eberg , this case is devoid of a n y
e vidence show ing a p otentia l conf lict o f interest in vo lv in g f id uc iar y o r p ecuniary interest.

In c onclusi on, none of the Suprem e Cou rt cases r elie d on by the Distric t Cou rt, and we are aware of none, has held or clearly establ ished th at an appear ance of bias on t he p art o f a ju dge , w it hout more, violates the Due Pro ces s C laus e. Because the position take n by the District Cou rt i s
no t supporte d by anyUnited States Supreme Cou rt

ca se la w t o da te, the Dis tri ct Court’s gr ant of habeas reli ef i s
re ve rs ib le erro r u nde r AE DPA.

D. Our sister Co urts of Ap peals have rejec ted arguments s imil ar to t hose made by Johnson. T he S econ d C ircuit concluded that § 455( a)’s “ appearance of impro priety standar d” is not “mandated by the Due Process Clause .” Hardy v. United States , 878 F.2 d 94 , 97 ( 2d C ir. 1989)

. The Fifth Circuit obs erved that “sect ion 45 5 a nd the Due Process Clause are not cote rmin ous .” United States v. Couch , 896 F.2d 78 , 81 (5th C ir. 1990). “[C]onductvio lati ve of section 455 may not [necessarily ] constitute a due process def icien cy.” Id. (cit ations omitt ed). The Couch court held that a federalsentence
was not open to c ollateral review on consti tuti onal gro und s un der 28 U .S.C . § 2 255 (r eg ar di ng c ol late ra l rev ie w of a federalsentence ) unles s “an appearance of impro priety

. . . rose t o th e levelof fundamental defe ct resu lting in a com plete miscarriage of justice. ” Id. (internal quo tatio n m ark s om itted ).

The Sev enth Circu it in De l Vec chio

v. Illin ois Dept. of Corrections , 31 F.3d 1363 (7t h C ir. 1994 ) (en b anc), e xpre ssly rejec ted the vi ew that an appearance of bias amounted to adue process vi olati on. The court ac knowledged tha t “ the due process clause s ometimes requires a judge to recu se himsel f without a showing of actualbias, where a suffici ent motive t o be biasedexist s.” Id. at 137 1 (citi ng Tu mey
v. Oh io , 273 U.S. 510, 532 (1927) ; In re Mu rc hison , 349 U .S. 133, 136 (1955); Aetna Life Ins. C o. v. L avoie , 475 U. S. 813, 8 2 5 ( 198 6) ). “Des pi te th e Su pr eme Co urt’s bro ad pr ono unce men ts about ‘the appearance of justice, ’” the De l Vec chio court concluded that it

“cannot ans wer the d u e process que sti on simplyby concluding that it ma y ha ve loo ked b ad fo r [a state tri al judg e] to pr eside a t trial. ” Del Ve cchio , 31 F .3d a t 13 71.

The court s pecifi call y r eject ed the view that “th e Supre me C ourt’ s ‘appeara nce of justice’ l anguage from Murchison and Aetna as holdi ng that t he due process clau se re q uires ju dges to
recuse them selves base d sole ly o n app eara nce s.” Id. The court concluded, as do we, that

th ose Supreme Court deci sions “present no such holdi ng. . . .” Id. The court obse rved furthe r:12

The Suprem e Court has never rest ed the vaunted princi ple of due pr ocess on
s omething as subje ctiveand trans itory as appearanc e. Instead, the Su preme C ourt simp ly uses the“app ea rance of j usti ce” lang u age to make the poi nt that judges

s ometimes mus t rec us e the mse lv es wh e n th ey face possi ble te mptati ons to be biased, even when they exhibit no actual bias agai nst a party or a cause.

In short, bad appearances alone do not req uire disq ualif icatio n. . .

. When the Sup re me Co urt talks a bou t th e “appearance of just ice,” it i s not saying that bad appearances alone r equire disqual ific ation; rather , it is saying that when a judge i s faced with circumst ances that prese nt “so me [ actua l] incen tive to fi nd one way or t

he other” or “a r ea l poss ibility of bias, ” a court need not

exa mine whether the judge actually was biased. . . . Abse nt t he incentive for bias, how ever, disqu alificati on is not required despite bad appearance

.
Id. at 137 1-72 (citation s om it ted). 4 We ag ree w ith t he conclusi ons of our si ster Co urts o f A ppe als.

III. Because th e S upreme Co urt’s case la w has not hel d, not e ven in dic ta, let alone “clearly established,” that the m ere appearance of b ias on the pa rt of a s tate tri al judge, without more, violates the Due Process Clau se, th e District Cou rt’s judgmentbase d on th a t err oneous view must be rev erse d un der AE DP A. The case will be remanded to the D istrict Co urt w ith direct io ns to dis miss Johns on’s petiti on for a writ of habeas corpus.

4 After an ext ensive s urvey of the Supreme Court deci sions i nvolving disqual ific ations of judges, the Del Ve cchio court sum marized the standard for disqualifications as follows:

The questi on is not w hethe r som e pos sible temptation to be biased exists; inst ead, the questi on is, when does a biasi ng influe nce require disqu alificatio n? C onsiste nt w ith the common law, we begin in answeri ng this questi on by pr esuming the honestyand integrity of those serving as adjudicators. Disquali fication is requ ired on ly when the b iasi ng influe nce is s trong enou gh to

ove rc ome that presumption, tha t is, when the influe nce is s o strong t hat we may pr es ume ac tual bias. T his oc curs in situations

. . . in which experi ence teac hes that the po ssibility of actualbias i s too high to b e co nstitu tion ally tole rab le. A court must be convinc ed tha t a parti cular influe nce, under a rea lis tic app rai sal of psyc hologica l tend e ncies and human weakness, pose s such a risk of actualbias

or prejud gm ent tha t the pra cti ce must be forbidden i f t he guarantee of due process is t o be adequatel y i mplemented.

De lVec chio , 31 F.3d at 1375 (cit ations omitt ed) (int ernal quo tati on m ark s omitted).