2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-24-2004

Johnson v. Carroll

Precedential or Non-Precedential: Precedential

Docket No. 03-2101

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PRECEDENTIAL

IN THE UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

____________

No. 03-2101

____________

RONALD N. JOHNSON

 v.

THOMAS J. CARROLL, Warden;

ATTORNEY GENERAL OF

THE STATE OF DELAWARE

 Thomas Carroll,

 Appellant

 ____________

Appeal from the United States District

Court

For the District of Delaware

D.C. No.: 02-cv-00562

District Judge: Honorable Joseph J.

Farnan, Jr., Chief Judge

____________

(Argued: February 24, 2004)

Before: RENDELL, BARRY and

ROSENN, Circuit Judges

(Filed May 24, 2004)

Thomas E. Brown (Argued)

Office of Attorney General of Delaware

Department of Justice

820 North French Street

Wilmington, DE 19801

Counsel for Appellant

Joseph M. Bernstein (Argued)

800 North King Street, Suite 302

Wilmington, DE 19801

Counsel for Appellee

____________

OPINION OF THE COURT

____________

ROSENN, Circuit Judge.

This appeal raises an interesting

question under the recent enactment of the

Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) pertaining to the

failure of a state judge to recuse himself

because his impartiality might reasonably

be questioned. A grand jury in Delaware

indicted Thomas Carroll for the theft of

property valued in excess of $1000,

possession of a deadly weapon by a person

prohibited, and several other related

crimes. After a trial to a jury, he was

convicted of the weapon charge and the

lesser included charge of aggravated

menacing. He was acquitted of all other

charges. He was sentenced to eighteen

years imprisonment as a habitual offender.

The State Supreme Court affirmed his

conviction and sentence. Johnson v. State,

797 A.2d 1206 (table), 2002 WL 714520

(Del. April 22, 2002).

Without filing any post-conviction

motion in the state court, Johnson filed a

petition for a writ of habeas corpus in the

United States District Court for the District
2

of Delaware under 28 U.S.C. § 2254(d).1

The District Court conditionally granted

Carroll’s petition for habeas relief as to his

sentence, concluding that there existed an

appearance of bias on the part of the

sentencing judge. Johnson v. Carroll, 250

F. Supp.2d 395 (D. Del. 2003). The

District Court ordered the State to grant

Johnson a new sentencing hearing. The

State timely appealed. In light of the

stringent provisions of AEDPA, we

reverse and direct the District Court to

dismiss Johnson’s habeas petition.

I.

A.

The relevant facts regarding

Johnson’s conviction and sentence are

undisputed. The charges set forth in the

indictment stemmed from the alleged

kidnaping of his estranged sixteen-year-old

daughter, Karen Vincent, on October 6,

1997. 

Immediately before sentencing

Johnson following his conviction, the state

court trial judge held a conference with

both the prosecutor and defense counsel in

his chambers. The judge voluntarily

disclosed that he “had an out-of-court

conversation” with James Liguori, a

Delaware attorney and former state

prosecutor, at a social function at Liguori’s

home. “As you both know Jim Liguori, if

you see him, he talks about cases all the

time.” The judge informed counsel that

Liguori made a comment about Johnson

during their conversation. As related by

the judge, Liguori commented that

Johnson was a “bad guy,” that he had

“threatened” Liguori and his family, and

that Liguori “wanted to see that justice was

done.” The judge assured counsel that he

believed that Liguori’s comment would

not have any impact on his view of the

case or his pending sentencing decision.

Defense counsel at the time, Sandra

Dean, a public defender, who had become

Johnson’s trial counsel mid-way through

trial, voluntarily informed the judge of the

background information regarding

Johnson’s alleged threat to Liguori

eighteen years before, in 1981. Liguori,

then a state prosecutor, prosecuted

Johnson in an unrelated matter. Johnson,

having been convicted and imprisoned,

sent a Christmas card to Liguori in 1981.

The Christmas card read: “You had fun in

’81 and will be free in ’83.” Johnson

escaped from prison, and it was debated

then whether he posed a threat,

presumably to Liguori and his family. The

judge told Dean that he had no knowledge

of the background information that she had

just related and commented that it perhaps

explained why Liguori made the comments

about Johnson. 

Dean then informed the judge that

the local newspapers had reported the

purported threat at that time and that the

 

1

 The respondent-appellants are

Thomas Carroll, warden of the state

prison where Johnson is jailed, and the

Attorney General of the State of

Delaware. To simplify reference, we

refer to them as the State of Delaware.
3

Public Defender’s Office had included the

newspaper clippings among the documents

submitted to the court in relation to

Johnson’s present trial. Dean assured the

judge that Johnson’s 1981 Christmas card

was part of “public record.” The judge

and Dean both agreed that the purported

threat was well documented and that the

documents were all in the “whole file”

earlier submitted to the court. 

The state prosecutor, Robert

O’Neill, in turn mentioned his own

“recollection” of Johnson’s purported

threat to Liguori and his family. He then

told the judge that Liguori’s comment

about Johnson’s character was relevant to

the court in meting out the sentence to him

because he was charged as a “habitual

offender” under state law. He informed

the judge further that the court should

consider Johnson’s propensity for violence

and his entire criminal history in

determining the term of sentence. He also

told the judge that Liguori arguably could

be presented as a witness at Johnson’s

sentencing hearing.

Finally, in response to O’Neill’s

question as to whether she intended to file

any motion regarding the ex parte

communication disclosed by the judge,

Dean told the judge she had no such

intention because the alleged incident was

“nothing new,” “a matter of record,”

“happened a long time ago,” and the judge

had indicated that he would not give it

“any undue weight.” Dean told the judge

also that she would discuss the matter with

Johnson and expressed doubt that he

would request a different judge for the

pending sentencing. The judge concluded

the conference by stating that he would not

allow Liguori to be a witness at Johnson’s

sentencing hearing.

B.

Johnson obtained new counsel and

appealed his conviction and sentence. As

to Johnson’s sentence, the Delaware

Supreme Court rejected his claim that the

trial judge had erroneously failed to recuse

himself sua sponte. The court analyzed the

issue first under the Delaware Judges’

Code of Judicial Conduct and found the

situation was not one of those enumerated

in the Code that would mandate recusal.

Johnson v. State, 2002 WL 714520, at *3.

The court analyzed the issue then under a

two-prong test set forth under its prior

decisions. Id. (citing Stevenson v. State,

782 A.2d 249, 255 (Del. 2001); Los v.

Los, 595 A.2d 381, 384 (Del. 1991)).

Under the subjective prong, the court

noted the trial judge’s statement that “I

don’t view [the contact] to have any

impact on my view of the case or my

decision with regard to sentencing,” and

found it sufficient. Under the objective

prong, the court did not find any

“appearance of bias sufficient to cause

doubt as to the judge’s impartiality.”

Specifically, the court observed that the

“[trial] judge did not engage in any active

conduct demonstrating the appearance of

impropriety.” Id. (emphasis added)

(distinguishing this case from Stevenson,

782 A.2d at 251, 257 n.3 (finding

appearance of impropriety when a judge
4

who had previous contact with a victim

affirmatively requested that the case be

assigned to him)). The court observed

additionally that Johnson’s previous

counsel at trial admitted, and his new

counsel on appeal did not deny, that the

record in his case available to the trial

court had already contained a more

detailed account of his alleged threat to

Liguori. Id.

The District Court issued an order

and opinion ruling against Johnson as to

his conviction but in favor of him as to his

sentence. Johnson v. Carroll, 250 F.

Supp.2d at 398. Specifically, the court

agreed with Johnson that the trial court

judge erroneously failed to recuse himself

sua sponte from sentencing Johnson

following his voluntary disclosure that he

had received an out-of-court ex parte

communication from a former prosecutor

regarding Johnson. The court agreed that

the failure to do so created an appearance

of bias on the part of the judge in violation

of Johnson’s due process rights under the

United States Constitution.

II.

It is not disputed that Johnson had

exhausted his state remedy prior to his

initiation of the underlying federal habeas

action. It is also not disputed that AEDPA

governs a federal court’s review of

Johnson’s habeas action. The District

Court had subject matter jurisdiction under

28 U.S.C. § 2254. We have appellate

jurisdiction under 28 U.S.C. §§ 1291 and

2253. The question of whether the District

Court appropriately applied the AEDPA

standard of review is a question of law

subject to review by this Court de novo.

Chadwick v. Janecka, 312 F.3d 597, 605

n.6 (3d Cir. 2002).

A.

AEDPA severely circumscribes a

federal habeas court’s review of a state

court decision. AEDPA provides in

relevant part:

An application for a writ of habeas corpus

on behalf of a person in custody pursuant

to the judgment of a State court shall not

be granted with respect to any claim that

was adjudicated on the merits in State

court proceedings unless the adjudication

of the claim—

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts

in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d) (emphasis added).

The determination of what constitutes

“clearly established federal law” is a

“threshold question in § 2254 cases.”

Lockyer v. Andrade, 538 U.S. 63, 71

(2003). 

The statutory phrase “clearly

established” is defined as follows:

Section 2254(d)(1)’s “clearly established”

phrase refers to the holdings, as opposed to

the dicta, of [the Supreme] Court’s
5

decisions as of the time of the relevant

state-court decision. . . . In other words,

“clearly established Federal law” under §

2254(d)(1) is the governing legal principle

or principles set forth by the Supreme

Court at the time the state court renders its

decision.

Id. at 71-72 (citations omitted) (emphasis

added) (internal quotation marks omitted).

The statutory phrase “contrary to”

is defined as follows:

[A] state court decision is contrary

to [the Supreme Court’s] clearly

established precedent if the state

court applies a rule that contradicts

the governing law set forth in [the

Supreme Court’s] cases or if the

state court confronts a set of facts

that are mat eria l l y

indistinguishable from a decision

of [the] Court and nevertheless

arrives at a result different from

[the Court’s] precedent.

Id. at 73 (internal quotation marks

omitted). 

The statutory phrase “unreasonable

application” is defined as follows:

[U]nder the “unreasonable

application” clause, a federal

habeas court may grant the writ if

the state court identifies the correct

governing legal principle from [the

Supreme] Court’s decisions but

unreasonably applies that principle

to the facts of the prisoner’s case.

The “unreasonable application”

clause requires the state court

decision to be more than incorrect

or erroneous. The state court’s

application of clearly established

law must be objec tively

unreasonable. . . . It is not enough

that a federal habeas court, in its

independent review of the legal

question, is left with a “firm

conviction” that the state court was

“erroneous.” [The Supreme Court

has] held precisely the opposite:

Under § 2254 ( d )(1) ’ s

“unreasonable application” clause,

then, a federal habeas court may

not issue the writ simply because

that court concludes in its

independent judgment that the

relevant state-court dec ision

applied clearly established federal

law erroneously or incorrectly.

Rather, that application must be

objectively unreasonable. 

Id. at 75-76 (citations omitted) (emphases

added) (internal quotation marks omitted).

B.

The District Court acknowledged

that it was bound by AEDPA’s stringent

standard in reviewing the merits of

Johnson’s habeas claims. The court

agreed with Johnson that the Delaware

Supreme Court’s decision was “contrary to

or an unreasonable application of federal

law and an unreasonable application of the

facts in light of the evidence.” Johnson v.

Carroll, 250 F. Supp. 2d at 403. 

The District Court and Johnson
6

relied on three United States Supreme

Court decisions, In re Murchison, 349 U.S.

133 (1955), Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847 (1988),

and Liteky v. United States, 510 U.S. 540

(1994).2 The Court agreed with Johnson

that the trial judge’s failure to recuse

himself sua sponte gave rise to an

appearance of bias and that the appearance

of bias violated his due process rights.

The Court wrote:

In this case, it appears to the Court

that the Delaware Supreme Court

limited its analysis to the active

conduct of the trial judge, an

analysis which is inconsistent with

the concept of an appearance of

bias. In addition, the Court did not

consider the impact of Liguori’s

comments that “he wanted to see

that justice was done.” In these

circumstances, Liguori’s ex parte

“sentencing recommendation”

could well create a situation in

which a reasonable observer would

question the trial judge’s

impa rtia lity. Because the

Delaware Supreme Court limited

its analysis to the active conduct of

the judge, it did not consider the

reaction of the reasonable observer

and the related risks of injustice to

the parties and undermining the

public’s confidence in the judicial

process that result from the

continued participation of a judge

in a proceeding despite the judge’s

appearance of bias. See Stevenson

[v. State], 782 A.2d [249, 258 (Del.

2001) (en banc)]. Thus, the Court

concludes that the Delaware

Supreme Court decision was not

entirely consistent with federal law

and was not a reasonable

application of the facts in light of

the evidence.

Johnson v. Carroll, 250 F. Supp. 2d at 404

(emphases added).

C.

Johnson has not asserted, and there

is no evidence, that the trial judge

harbored any actual bias toward him. He

argued, and the District Court agreed, that

the ex parte communication created an

appearance of bias and that the appearance

of bias violated his due process rights

under the United States Constitution. 

Under the plain language of §

2254(d), as well as the United States

Supreme Court’s case law, we are

presented only with one narrow issue:

whether the Supreme Court has ever held

in any of its decisions existing at the time

of the District Court’s judgment, including

the three cases relied on by Johnson and

the District Court, that an appearance of

 

2 The District Court also relied on

Stevenson v. State, 782 A.2d 249 (Del.

2001), to support its conclusion. 

Because § 2254(d)(1) expressly limits

federal law jurisprudence to decisions by

the United States Supreme Court, the

state court case will be disregarded in our

review.
7

bias on the part of a state court judge,

without more, violates the Due Process

Clause of the United States Constitution.

We are not, and cannot be, concerned with

the issues of whether the trial judge should

have recused himself sua sponte or

whether the ex parte communication at

issue was sufficient to constitute an

appearance of bias. We assume that there

was an appearance of bias.

We note first that the District Court

has significantly changed the statutory

language of § 2254(d) in its presentation

of the issue before it. The phrase “clearly

established” was noticeably absent in the

court’s presentation of the § 2254(d)(1)

prong, and the court substituted the

statu tory phrase “unreaso nabl e

determination of the facts in light of the

evidence” with the phrase “unreasonable

application of the facts in light of the

evidence” in its presentation of the §

2254(d)(2) prong. See Johnson v. Carroll,

250 F. Supp. 2d at 404. Because the

AEDPA standard is strict, the Court’s

omission and deviation were erroneous

and distorted its analysis. 

We note also that despite its

presentation of the § 2254(d)(2) prong, the

District Court did not analyze the

Delaware Supreme Court’s decision under

that prong. The reason is obvious: the

decision of the state appellate court did

not, and could not, involve any

“determination of facts” regarding the

undisputed ex parte communication at

issue. Nor did the state court’s decision

involve any “unreasonable application of

the facts,” as expressed by the District

Court. The state court adjudicated

Johnson’s appeal of his sentence under the

Delaware Judges’ Code of Judicial

Conduct and its own case law regarding

the recusal standard for Delaware judges.

As conceded by the District Court

in its later decision to grant the state’s

motion for an enlargement of the stay of its

judgment pending the resolution of this

appeal, its earlier decision granting habeas

relief “was based on an analogy to

Supreme Court cases related to the issue of

recusal under 28 U.S.C. § 455 [for federal

judges] and not on direct precedent related

to the trial judge’s appearance of bias

under the Due Process Clause.” Johnson

v. Carroll, No. 02-562 - JJF, 2003 WL

22136302 at *1 (D.Del. Sept. 10, 2003).

(emphases added.) This belated

realization was tantamount to an admission

that none of the Supreme Court decisions

relied on by the District Court in its earlier

decision “clearly established” that mere

appearance of bias, without more, violates

the Due Process Clause. Our own reading

of the cases shows that they do not stand

for any such holding, and we are not aware

of any other Supreme Court decision that

has so held. 

The Supreme Court held in In re

Murchison, 349 U.S. 133 (1955), that it

was unconstitutional for the same state

judge, after a full hearing in open court, to

punish contempt, previously committed

before him while acting as a one-man

“judge-grand jury” permitted under then

Michigan laws. “It would be very strange
8

if our system of law permitted a judge to

act as grand jury and then try the very

persons accused as a result of his

investigations.” 349 U.S. at 137. The

Court concluded that “no man can be a

judge in his own case and no man is

permitted to try cases where he has an

interest in the outcome.” Id. at 136. That

conclusion was based on “the basic

requirement of due process” that the

defendant receive “[a] fair trial in a fair

tribunal.” Id. The Court commented that

although fairness certainly required “an

absence of actual bias,” “our system of law

has always endeavored to prevent even the

probability of unfairness.” Id. The Court

acknowledged that its “stringent rule 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.” Id.

However, “to perform its high function in

the best way justice must satisfy the

appearance of justice.” Id. (internal

quotation marks omitted). 

The District Court and Johnson

relied on the above language to support

their conclusion that an appearance of bias

violated the Due Process Clause. In re

Murchison does not stand for that broad

conclusion. Instead, its holding, as

opposed to dicta, is confined to the basic

constitutional principle of prohibiting a

judge from adjudicating a case where he

was also an investigator for the

government. The rest of the language

quoted in the preceding paragraph merely

explains the holding. Even a generalized

reading of the holding, that a judge cannot

adjudicate a case where he has an interest

in the outcome, does not stand for the

conclusion, drawn by the District Court

and Johnson, that a judge with an

appearance of bias, without more, is

required to recuse himself sua sponte

under the Due Process Clause. Johnson

has not alleged, and there is no evidence,

that the trial judge here had a personal

interest in the outcome of the sentence. 

The Supreme Court held in Liteky

v. United States, 510 U.S. 540 (1994), that

recusal under 28 U.S.C. § 455(a) was

subject to the limitation known as the

“extrajudicial source” doctrine or factor.

That statute requires a federal judge to

“disqualify himself in any proceeding in

which his impartiality might reasonably be

questioned.” Specifically, the Court

concluded that apart from surrounding

comments or accompanying opinion,

evidencing such “deep-seated favoritism

or antagonism” as would make fair

judgment impossible, judicial rulings alone

“cannot possibly show reliance upon an

extrajudicial source.” Id. at 555. In

addition, opinions formed by the judge on

the basis of facts introduced or events

occurring during current or prior

proceedings are not grounds for a recusal

motion unless they display a similar degree

of favoritism or antagonism. Id.

The Liteky holding is limited to the

interpretation of the recusal standard under

§ 455(a) for federal judges. Facially, it

does not stand for the conclusion, drawn

by the District Court and Johnson, that

appearance of bias alone on the part of a
9

state judge makes that judge’s decision

subject to federal habeas review under §

2254(d)(1). To the extent that the holding

is relevant, it undercuts, rather than

supports, Johnson’s claim. Johnson has

not alleged, and there is no evidence, that

the trial judge harbored any deep-seated

antagonism toward him. It is not disputed

that Johnson’s alleged threat to Liguori

was documented in the records available to

the trial judge prior to the sentencing.

Under Liteky, an opinion formed by a

federal judge, which the judge here was

not, on the basis of facts introduced at

trial, would not be grounds for a recusal

motion, even had one been filed by

Johnson. 

Similarly, the Supreme Court’s

holding in Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847 (1988), is

limited to an interpretation of the recusal

standard for federal judges under § 455(a),

as it related to the specific facts of the

case. In that case, a federal judge

conducted a bench trial involving a dispute

over the ownership of a corporation

formed by the defendant in that action for

the purpose of constructing and operating

a hospital. The judge issued a verdict in

favor of the defendant. The judge had

been a member of the board of a university

and regularly attended its meetings. At the

time of the trial involving the defendant,

the judge knew that the defendant had

negotiated extensively with the university

regarding the purchase of a piece of real

estate property owned by the university for

the construction of the proposed hospital.

The judge also knew at the time of the trial

that the university had just approved

reopening negotiations with the defendant.

Following two days of trial, the

judge immediately announced hisintention

to rule for the defendant. After the trial,

but before issuing the verdict, the judge

did not attend a university board meeting,

which discussed the terms of a sale

agreement with the defendant. The

proposed agreement provided that the

agreement would be void if the defendant

failed to retain the disputed ownership of

the corporation. The judge did not read

the minutes of that meeting until he had

rendered judgment for the defendant.

Under the circumstances of that

case, the Supreme Court concluded that

the judge’s participation in the case

created a strong appearance of impropriety

and plainly violated § 455(a), even if he

lacked actual knowledge of the

university’s interest in the outcome of the

dispute involving the defendant. Id. at

859. Specifically, the Court held that the

purpose of the statute, to promote public

confidence in the integrity of the judicial

process, did not depend on whether the

judge actually knew of the facts creating

an appearance of impropriety, so long as

the public might reasonably believe that he

knew.3Id. at 859-60. The Court

 

3The Court pointed to four facts that

might cause an objective observer to

question the judge’s impartiality and

justify the Court’s decision to affirm the

vacating of the judgment in favor of the
10

concluded that the facts of that case

warranted the application of § 455(a)

because the violation was “neither

insubstantial nor excusable.” Id. at 867.

Although the judge did not know of his

“fiduciary interest in the litigation, he

certainly should have known.” Id. at 867-

68.

It is obvious that the Liljeberg

Court’s holding is limited to an

interpretation of §455(a) governing recusal

of federal judges and based on the specific

facts of that case, where the judge’s

putative fiduciary interest in the outcome

of the litigation, as being a member of the

university board, conflicted with his

judicial obligation to be free of actual and

perceived impartiality. Even though the

Court mentioned that the concern for the

integrity of judges had “constitutional

dimensions,” id. at 865 n.12 (citing Aetna

Life Ins. Co. v. Lavoie, 475 U.S. 813, 825

(1986) (citing Murchison, 349 U.S. at

136)), its holding was not based on the

Due Process Clause. Liljeberg neither

holds nor suggests that an appearance of

bias on the part of a federal judge, without

more, violates the Due Process Clause. 

In contrast to the federal judge in

defendant under Federal Rule of Civil

Procedure 60(b)(6). First, in view of the

financial importance of the defendant’s

project to the university, it was

“remarkable” that the judge, who had

regularly attended the meetings for the

university board for a decade,

“completely forgot” about the

university’s interest in having a hospital

constructed on its property. Id. at 865. 

Second, it was an “unfortunate

coincidence” that although the judge had

regularly attended the university board’s

meetings, he did not attend that particular

post-trial meeting that discussed and

approved the terms of the sale agreement

with the defendant. The minutes of that

meeting were mailed to the judge four

days before he issued judgment; if he had

opened the envelope upon receipt, he

would have been under a duty to recuse

himself before he rendered judgment. Id.

at 866. Third, it was “remarkable,” and

“quite inexcusable,” that the judge failed

to recuse himself after he had finally read

the minutes. “A full disclosure at that

time would have completely removed

any basis for questioning the judge’s

impartiality and would have made it

possible for a different judge to decide

whether the interests—and

appearance—of justice would have been

served by a retrial.” Id. By his silence,

the judge deprived the plaintiff of a basis

for making a timely motion for a new

trial and also deprived it of an issue on

direct appeal. Id. at 867. Finally, when

the plaintiff’s counsel filed its motion to

vacate, the judge still did not

acknowledge that he had known about

the university’s interest both shortly

before and shortly after the trial. Nor did

he indicate an awareness of a duty to

recuse himself after he had read the

minutes. Id.
11

Liljeberg, the state trial judge here

voluntarily disclosed the ex parte

communication that he had received from

a non-party prior to sentencing Johnson,

providing him with a basis for making a

timely motion for recusal. In contrast to

Liljeberg, this case is devoid of any

evidence showing a potential conflict of

interest involving fiduciary or pecuniary

interest.

In conclusion, none of the Supreme

Court cases relied on by the District Court,

and we are aware of none, has held or

clearly established that an appearance of

bias on the part of a judge, without more,

violates the Due Process Clause. Because

the position taken by the District Court is

not supported by any United States

Supreme Court case law to date, the

District Court’s grant of habeas relief is

reversible error under AEDPA.

D.

Our sister Courts of Appeals have

rejected arguments similar to those made

by Johnson. The Second Circuit

concluded that § 455(a)’s “appearance of

impropriety standard” is not “mandated by

the Due Process Clause.” Hardy v. United

States, 878 F.2d 94, 97 (2d Cir. 1989).

The Fifth Circuit observed that “section

455 and the Due Process Clause are not

coterminous.” United States v. Couch,

896 F.2d 78, 81 (5th Cir. 1990).

“[C]onduct violative of section 455 may

not [necessarily] constitute a due process

deficiency.” Id. (citations omitted). The

Couch court held that a federal sentence

was not open to collateral review on

constitutional grounds under 28 U.S.C. §

2255 (regarding collateral review of a

federal sentence) unless “an appearance of

impropriety . . . rose to the level of

fundamental defect resulting in a complete

miscarriage of justice.” Id. (internal

quotation marks omitted). 

The Seventh Circuit in Del Vecchio

v. Illinois Dept. of Corrections, 31 F.3d

1363 (7th Cir. 1994) (en banc), expressly

rejected the view that an appearance of

bias amounted to a due process violation.

The court acknowledged that “the due

process clause sometimes requires a judge

to recuse himself without a showing of

actual bias, where a sufficient motive to be

biased exists.” Id. at 1371 (citing Tumey

v. Ohio, 273 U.S. 510, 532 (1927); In re

Murchison, 349 U.S. 133, 136 (1955);

Aetna Life Ins. Co. v. Lavoie, 475 U.S.

813, 825 (1986)). “Despite the Supreme

Court’s broad pronouncements about ‘the

appearance of justice,’” the Del Vecchio

court concluded that it “cannot answer the

due process question simply by concluding

that it may have looked bad for [a state

trial judge] to preside at trial.” Del

Vecchio, 31 F.3d at 1371. 

The court specifically rejected the

view that “the Supreme Court’s

‘appearance of justice’ language from

Murchison and Aetna as holding that the

due process clause requires judges to

recuse themselves based solely on

appearances.” Id. The court concluded, as

do we, that those Supreme Court decisions

“present no such holding. . . .” Id. The

court observed further:
12

The Supreme Court has never rested the

vaunted principle of due process on

something as subjective and transitory as

appearance. Instead, the Supreme Court

simply uses the “appearance of justice”

language to make the point that judges

sometimes must recuse themselves when

they face possible temptations to be

biased, even when they exhibit no actual

bias against a party or a cause.

In short, bad appearances alone do

not require disqualification. . . . When the

Supreme Co urt talks a bou t the

“appearance of justice,” it is not saying

that bad appearances alone require

disqualification; rather, it is saying that

when a judge is faced with circumstances

that present “some [actual] incentive to

find one way or the other” or “a real

possibility of bias,” a court need not

examine whether the judge actually was

biased. . . . Absent the incentive for bias,

however, disqualification is not required

despite bad appearance.

Id. at 1371-72 (citations omitted).4 We

agree with the conclusions of our sister

Courts of Appeals. 

III.

Because the Supreme Court’s case

law has not held, not even in dicta, let

alone “clearly established,” that the mere

appearance of bias on the part of a state

trial judge, without more, violates the Due

Process Clause, the District Court’s

judgment based on that erroneous view

must be reversed under AEDPA. The case

will be remanded to the District Court with

directions to dismiss Johnson’s petition for

a writ of habeas corpus.

 

4After an extensive survey of the

Supreme Court decisions involving

disqualifications of judges, the Del

Vecchio court summarized the standard

for disqualifications as follows:

The question is not whether some possible

temptation to be biased exists; instead, the

question is, when does a biasing influence

require disqualification? Consistent with

the common law, we begin in answering

this question by presuming the honesty and

integrity of those serving as adjudicators.

Disqualification is required only when the

biasing influence is strong enough to

overcome that presumption, that is, when

the influence is so strong that we may

presume actual bias. This occurs in

situations . . . in which experience teaches

that the possibility of actual bias is too

high to be constitutionally tolerable. A

court must be convinced that a particular

influence, under a realistic appraisal of

psychological tendencies and human

weakness, poses such a risk of actual bias

or prejudgment that the practice must be

forbidden if the guarantee of due process

is to be adequately implemented.

DelVecchio, 31 F.3d at 1375 (citations

omitted) (internal quotation marks

omitted).