In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3946

ANDREW SUH,

Petitioner-Appellant,

v.

GUY PIERCE, Warden,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:03-cv-07014—Rebecca R. Pallmeyer, Judge.

ARGUED OCTOBER 20, 2010—DECIDED JANUARY 18, 2011

Before FLAUM, RIPPLE, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Fifteen years ago, after a bench

trial in the Circuit Court of Cook County presided over

by Judge John Morrissey, Andrew Suh was convicted of

first-degree murder and armed robbery and sentenced

to consecutive terms of 80 and 20 years. In a state court

petition for postconviction relief, Suh argued that his

convictions and sentences were tainted, in violation of

the due process clause, because Judge Morrissey had an

undisclosed relationship with the family of the murder

victim. The state courts denied Suh’s petition. He then
2 No. 09-3946

sought a writ of habeas corpus in federal court, pursuant

to 28 U.S.C. § 2254, but that petition was also denied. See

Suh v. Mote, 2009 WL 3681645 (N.D. Ill. Nov. 3, 2009). Suh

now appeals.

Notably, however, Suh now maintains that he is

entitled to relief simply because the situation might

have looked improper to an outside observer, despite

the fact that Judge Morrissey was actually unaware of

the relationship between his acquaintances and the

murder victim when the case went to trial. The government, on the other hand, contends that this argument

was not presented previously and that, in any event, it

lacks merit. We begin with the facts as found by the

state courts. See 28 U.S.C. § 2254(e)(1).

In late September 1993, Robert O’Dubaine was shot

twice and killed as he entered the garage of his home

in Chicago’s Bucktown neighborhood. O’Dubaine lived

in the home with his girlfriend, Catherine Suh, who is

Andrew Suh’s older sister. During a subsequent police

interview, Catherine admitted to luring O’Dubaine into

the garage for a waiting gunman. Catherine was arrested

but fled after being released on bond. A jury later convicted her in absentia of first-degree murder and armed

robbery. She was sentenced to life in prison.

Shortly after Catherine’s arrest, Suh, a 19-year-old

college student at the time, was interviewed by Chicago

police. He eventually confessed to murdering O’Dubaine,

explaining that his sister had repeatedly sought his help

in a plan to kill O’Dubaine because he was physically

abusing her and spending her money. When Catherine

lured O’Dubaine into the garage, Suh, who had been
No. 09-3946 3

According to the private investigator, O’Dubaine was 1

born “Robert Koron” and changed his last name to a Gaelic

derivative of “Divane” several years before his death.

hiding there for some time, shot O’Dubaine twice in the

head. Suh then took O’Dubaine’s wallet and car, and

drove away.

Suh appealed his convictions and sentences, advancing

arguments that are not at issue here. The state appellate court affirmed the convictions but modified the

sentences to run concurrently. The state supreme court

denied leave to appeal. People v. Suh, 729 N.E.2d 503 (Ill.

2000). Suh then filed two postconviction petitions in

state court, again making arguments that are not

relevant here. The state appellate court affirmed the

dismissals of both petitions, and the state supreme court

denied leave to appeal. People v. Suh, 786 N.E.2d 197

(Ill. 2002).

In the meantime, Patrick Lavery, a playwright researching Suh’s story, interviewed a nun, Sister Barbara

McCarry, who had been the principal of Suh’s grammar

school and was knowledgeable about the case. According to Lavery, Sister McCarry said that the judge at

Suh’s trial (Morrissey), was close to the victim’s family.

A private investigation subsequently revealed that

Judge Morrissey: (1) served on the Cook County First

Municipal District Court from 1983 to 1988 with

O’Dubaine’s uncle, Judge John Divane; and (2) attended

high school with William (Bill) Divane, the cousin of

O’Dubaine’s mother.1
4 No. 09-3946

Suh then filed a third postconviction petition in

state court, arguing that Judge Morrissey’s ties to the

family of the victim created a constitutionally impermissible potential for judicial bias. The state trial court

denied Suh’s request to use discovery to investigate the

allegations, so his lawyers relied on evidence gathered

through voluntary telephone interviews with Judge

Morrissey and others.

In his interview, Judge Morrissey stated that he was

unaware of any relationship between O’Dubaine and

the Divane family. He said that William Divane was a

casual friend, but he did not know that William was

related to O’Dubaine. According to Suh’s lawyers, Walter

Morrissey (who, despite his name, is not related to the

judge), a high school classmate of William Divane and

Judge Morrissey, initially stated that those two men

saw each other regularly and were long-time friends.

The day after the interview, however, Walter called

Suh’s lawyers back and said that William actually had

no relationship with Judge Morrissey.

Judge Morrissey also told the lawyers that Judge

Divane never contacted him about Suh’s case. Judge

Divane was interviewed and agreed that he never spoke

to Judge Morrissey about the case. In fact, Judge Divane

said that he did not even know Judge Morrissey. And

during her interview, Sister McCarry said that, contrary

to Lavery’s assertions, she had no knowledge of any

connection between Judge Morrissey and the Divane

family.

The state trial court denied Suh’s petition, and he

appealed. Although the discovery ruling was the
No. 09-3946 5

Suh actually filed his federal habeas petition at the same 2

time as his third postconviction petition in state court in order

to comply with the applicable one-year statute of limitation.

See 28 U.S.C. § 2244(d). The district judge then stayed the

federal petition pending the resolution of the state petition.

main focus of his appellate brief, Suh also argued that

his petition should have been granted because “[t]he

only reasonable inference from Judge Morrissey’s close

friendship with Bill Divane is that Bill Divane must

have told Judge Morrissey of the murder of his cousin,

and Judge Morrissey could not have failed to recognize

that he was trying that case—Andrew Suh’s case—in

his courtroom.” In affirming the denial of Suh’s petition,

the state appellate court cited both Illinois and United

States Supreme Court case law on judicial bias but reasoned that, because Judge Morrissey “was unaware of

any relationship between the victim and the Divane

family,” further discovery would have been futile, and

“unfairness was not probable during [Suh’s] trial.”

In his petition for leave to appeal to the state supreme

court, Suh repeated the arguments made to the state

appellate court. The supreme court denied Suh’s petition.

People v. Suh, 875 N.E.2d 1122 (Ill. 2007). Suh then filed

a federal habeas petition in the district court and again 2

requested permission to take several depositions. The

district judge subsequently granted the request with

respect to Judge Morrissey, Judge Divane, William

Divane, and Sister McCarry.

The depositions were largely consistent with the earlier

interviews. Sister McCarry admitted to meeting with
6 No. 09-3946

Lavery and discussing Suh’s case but she said she had

no recollection of ever mentioning a connection between

Judge Morrissey and the victim’s family. Rather, Sister

McCarry believed that Lavery was trying to discredit

Judges Morrissey and Divane.

Judge Morrissey testified to being acquainted with

Judge Divane, although their courtrooms were in

separate buildings. Judge Morrissey estimated that he

spoke to Judge Divane some five or ten times at judicial

conferences between 1983 and 1988 and maybe at a

dinner for judges. Judge Divane, however, testified that

he could not recall ever meeting or speaking to Judge

Morrissey and that he would not recognize him if they

did meet.

Judge Morrissey also testified to being a casual acquaintance of William Divane. Both men said that they were

high school classmates but not close friends and that

they have met occasionally at high school reunions and

charity functions. Judge Morrissey testified that he most

recently spoke to William at a golf event in 2007, where

they briefly discussed the investigation relating to

Suh’s 1995 trial. William Divane, however, testified that

he could not recall whether he had seen Judge Morrissey

after 2002 and that they never had a conversation

about Suh.

Judge Morrissey lastly testified that, at the time of the

trial, he did not know that either William or Judge Divane

was related to O’Dubaine. He also said that he did not

communicate with anyone from the Divane family, or

anyone acting on the family’s behalf, about the case

before or during the trial.
No. 09-3946 7

After the depositions, Suh filed an amended petition

with the district court. There, he argued that Judge

Morrissey’s connections to the family of the victim established an impermissible “appearance of bias” in violation of the due process clause. Specifically, he challenged the reasonableness of the state court’s factual

findings on the existence of a relationship between

Judge Morrissey and the Divanes. He also argued that

the state court unreasonably applied the law to the

facts, speculating that the discrepancies among the testimony of Judge Morrissey and the Divanes indicated a

cover-up:

And the only reason for such conflicting testimony

must be some attempt to downplay, or escape all

together, the real nature or extent of the relationship.

This, of course, leads to the conclusion that . . . the

relationship must be one that rises to the level where

the temptation to be bias [sic] either could—or

did—affect Judge Morrissey’s ability to be fair and

impartial.

After summarizing the evidence, the district judge determined that: (1) the relationships were tangential and

therefore would not require recusal under the due

process clause; and, moreover, (2) no evidence suggested that Judge Morrissey even knew that his acquaintances were related to the victim, so the court would

not presume an unreasonably high temptation for bias.

We review the district court’s findings of fact for

clear error and its legal conclusions, as well as mixed

questions of law and fact, de novo. Harding v. Walls, 300
8 No. 09-3946

F.3d 824, 827 (7th Cir. 2002). Under the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), a

federal court may issue a writ of habeas corpus only if

the decision of the last state court to examine the merits

of the petitioner’s claim: (1) “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) “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).

Before we turn to the merits, however, there is a preliminary issue of procedural default. The government

contends that the argument Suh is now making—

namely, that due process required Judge Morrissey’s

recusal even though he was unaware of the connection

between the Divanes and O’Dubaine—was never

presented to the state courts. “Adequate presentation of

a claim requires a petitioner to present both the operative facts and the legal principles that control each claim

to the state judiciary.” Stevens v. McBride, 489 F.3d 883,

894 (7th Cir. 2007).

As we previously noted, Suh’s argument today differs

from the one he made in the state courts. In his state

court appellate brief, Suh argued that his postconviction

petition should have been granted because “[t]he only

reasonable inference from Judge Morrissey’s close friendship with Bill Divane is that Bill Divane must have

told Judge Morrissey of the murder of his cousin.” In

other words, Suh maintained that there was actual bias,
No. 09-3946 9

Suh argues that the government waived its procedural 3

default argument by not mentioning it in the district court. But

(continued...)

or at least the potential for actual bias, because

Judge Morrissey knew that O’Dubaine was related to

Bill Divane as well as several other people he knew rather

well. The appellate court accordingly determined that

unfairness was improbable based, in part, on a factual

finding that Judge Morrissey “was unaware of any relationship between the victim and the Divane family.” Suh’s

petition for leave to appeal to the state supreme court

repeated this argument.

Indeed, Suh persisted in this position before the

district court. There, he argued that Judge Morrissey’s

connections to the family of the victim established an

impermissible “appearance of bias” in violation of the

due process clause. But by “appearance of bias,” Suh

was still referring to the potential for actual bias

based on facts known to the judge at the time. He

asserted that the conflicting deposition testimony indicated a cover-up, and therefore “the relationship must

be one that rises to the level where the temptation to be

bias [sic] either could—or did—affect Judge Morrissey’s

ability to be fair and impartial.” (Emphasis added.) As

a result, in rejecting Suh’s petition, the district judge

found that the evidence was insufficient to rebut the

state court’s factual finding that Judge Morrissey was

unaware of the purported relationship. Under these

circumstances, an unreasonably high temptation for

bias could not be presumed.3
10 No. 09-3946

(...continued) 3

because Suh first advanced his modified “appearance of

bias” argument on appeal, this is the government’s first opportunity to challenge it. See Jones v. Hulick, 449 F.3d 784, 787

(7th Cir. 2006).

Suh argues that, because the state appellate court never 4

adjudicated his “appearance of bias” claim, its decision is not

entitled to any AEDPA deference. See Harrison v. McBride,

428 F.3d 652, 665 (7th Cir. 2005). Consistent with both Illinois

and Supreme Court case law, the appellate court addressed

(continued...)

Now, on appeal, Suh has abandoned the argument

that there was a cover-up and he does not dispute the

state court’s factual finding that Judge Morrissey was

unaware of the relationship between the Divanes and

O’Dubaine. Rather, he contends that the due process

clause requires recusal—even in the absence of any potential for actual bias—where it might “appear” to an

outsider that the judge had an interest in the outcome

of the case. The distinction is critical because, as we’ll

discuss later in more detail, while disqualification is

required based on an “appearance of bias” where there

is a high risk of actual bias, without that risk disqualification is not necessary. Because Suh never presented

the latter theory in state court, it is procedurally defaulted.

See Stevens, 489 F.3d at 893-94 (refusing to consider a

particular supporting argument that was not presented

in state court).

But even assuming that we’re splitting hairs and

Suh’s argument was preserved, it lacks merit. Although 4
No. 09-3946 11

(...continued)

whether actual bias was “probable.” But it did not pass on

the argument Suh now advances because, as we just discussed,

that argument was not presented previously. (Indeed, for this

reason, Suh could not—and did not—argue in the district court

that AEDPA deference was inapplicable.) In any event, we

need not decide the issue because Suh’s argument fails under

any standard.

“[a] fair trial in a fair tribunal is a basic requirement of

due process,” In re Murchison, 349 U.S. 133, 136 (1955),

“most matters relating to judicial disqualification d[o] not

rise to a constitutional level.” FTC v. Cement Institute, 333

U.S. 683, 702 (1948). “Thus matters of kinship, personal

bias, state policy, remoteness of interest would seem

generally to be matters merely of legislative discretion.”

Tumey v. Ohio, 273 U.S. 510, 523 (1927). But recusal is

required where the judge has “a direct, personal, substantial, pecuniary interest” in a case. Id.

In addition, the Supreme Court has identified certain,

specific instances requiring recusal. One is “where a

judge had a financial interest in the outcome of a case,

although the interest was less than what would have

been considered personal or direct at common law.”

Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2259-

61 (2009) (citing Tumey, Ward v. Monroeville, 409 U.S. 57

(1972), and Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813

(1986)). Another is “where a judge had no pecuniary

interest in the case but was challenged because of a

conflict arising from his participation in an earlier proceeding.” Caperton, 129 S. Ct. at 2261-62 (citing Murchison

and Mayberry v. Pennsylvania, 400 U.S. 455 (1971)).
12 No. 09-3946

Recusal also may be required outside of these specific

instances if the probability of actual bias is high enough.

See Caperton, 129 S. Ct. at 2263-64 (requiring recusal

where “a person with a personal stake in a particular

case had a significant and disproportionate influence in

placing the judge on the case by raising funds or

directing the judge’s election campaign when the case

was pending or imminent” because that situation involved “a serious risk of actual bias”). But the issue

before us is not whether a potentially biasing influence

was strong enough to be constitutionally intolerable.

Rather, because Suh is not challenging the state court’s

factual finding that the judge was unaware of the relationship between his acquaintances and the murder

victim, the only question is whether recusal was required

in the absence of any possibility of actual bias—that is,

based solely on how the situation might have “appeared”

to an outside observer. The Supreme Court has never

held, or even intimated, that the due process clause

requires recusal under such circumstances, so we must

answer the question in the negative.

Moreover, one of our own decisions has already addressed and rejected a very similar argument, albeit in a

hypothetical:

Suppose a judge does not know a close relative has a

financial interest in a case he tries. To the outside

observer aware of the interest but unaware of the

judge’s lack of knowledge, it would look bad for

the judge to try that case. But if the judge does not

even know about the relative’s financial interest, how
No. 09-3946 13

Interestingly, Suh cited Del Vecchio approvingly in his 5

district court brief. But, to repeat, there he was still arguing

that Judge Morrissey must have been aware of the relationship between the Divanes and O’Dubaine.

could he be tempted to undermine the case? And if

no actual incentive exists for the judge to be biased—if

the judge does not have reason to be partial—how

could the judge’s presiding over the trial deprive a

party of his right to a fair trial before an impartial

judge?

Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363,

1371 (7th Cir. 1994). Suh attempts to limit Del Vecchio

5

by seizing on general statements in our subsequent decisions about the “appearance of bias.” See, e.g., Franklin v.

McCaughtry, 398 F.3d 955, 960-61 (7th Cir. 2005) (“[T]he

Supreme Court has decided that . . . the appearance of

bias violate[s] due process principles.”); Bracy v. Schomig,

286 F.3d 406, 411 (7th Cir. 2002) (“[O]rdinarily . . . the

appearance of bias is sufficient to disqualify a judge.”). As

made clear by the cases we cited for those propositions

(Tumey, Murchison, Lavoie, etc.), however, by “appearance

of bias,” we meant situations in which there was at

least some risk of actual bias based on facts known to

the judge at the time.

Without any controlling case law in his arsenal, Suh

relies on Supreme Court decisions involving the federal

recusal statute, 28 U.S.C. § 455, which requires a judge

to disqualify himself whenever “his impartiality might

reasonably be questioned.” Indeed, language from those
14 No. 09-3946

decisions bolsters Suh’s argument. Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 859 (1988), for

example, says that “[t]he judge’s lack of knowledge of

a disqualifying circumstance may bear on the question

of remedy, but it does not eliminate the risk that ‘his

impartiality might reasonably be questioned’ by other

persons.” But the fact remains that, there, the Court was

interpreting § 455, not the due process clause. So Liljeberg

and its progeny are not on point. See Johnson v. Carroll, 369

F.3d 253, 262 (3d Cir. 2004) (“Liljeberg neither holds nor

suggests that an appearance of bias on the part of a

federal judge, without more, violates the Due Process

Clause.”); see also Davis v. Jones, 506 F.3d 1325, 1336 (11th

Cir. 2007) (collecting cases and finding that “the federal recusal statute establishes stricter grounds for disqualification than the Due Process Clause”). Left with no

legal legs to stand on, Suh’s petition cannot be granted.

For the foregoing reasons, the judgment of the

district court is AFFIRMED.

1-18-11