In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1221

ROBERTSON FOWLER, III,

Petitioner-Appellant,

v.

KEITH BUTTS, Superintendent, New Castle Correctional Facility,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:13-cv-1744-JMS-MJD — Jane Magnus-Stinson, Judge.

____________________

ARGUED APRIL 7, 2016 — DECIDED JULY 20, 2016

____________________

Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Robertson Fowler pleaded 

guilty in Indiana to unlawful possession of a firearm by a 

“serious violent felon” who was also a habitual offender. The 

judge sentenced him to 30 years’ imprisonment: 15 for the 

possession offense and 15 extra on account of his criminal 

history.
2 No. 15-1221

While his case was on appeal, the Supreme Court of Indiana held that a prior conviction used to establish status as a 

“serious violent felon” cannot also be used to establish status 

as a habitual offender. Mills v. State, 868 N.E.2d 446 (Ind. 

2007). Fowler’s appellate lawyer did not bring Mills to the 

attention of the intermediate appellate court, which affirmed 

his sentence. Fowler v. State, 2007 Ind. App. LEXIS 2015 (Aug. 

31, 2007). On collateral review the same court held that it 

would not have done any good to rely on Mills, because 

Fowler’s plea bargain waived reliance on the approach that

Mills adopted. Fowler v. State, 977 N.E.2d 464 (Ind. App. 

2012). Fowler then filed a federal collateral attack under 28 

U.S.C. §2254, contending that he had received ineffective assistance of counsel in his initial appeal. The district court denied this petition, relying on the state judiciary’s conclusion 

that Fowler had waived the benefit of Mills, and that given 

the waiver Fowler did not suffer any prejudice from counsel’s omission. 2015 U.S. Dist. LEXIS 6419 (S.D. Ind. Jan. 21, 

2015). Fowler contends in this court that the state’s 2012 appellate decision was wrong: that he had not waived the benefit of the Mills theory, and that a careful lawyer therefore 

would have relied on Mills in the initial appeal.

We do not address the substance of Fowler’s argument, 

because a procedural problem takes precedence. District 

Judge Magnus-Stinson, who denied Fowler’s federal collateral attack, also was the person who sentenced Fowler during her time on the state’s bench. We held in Weddington v. 

Zatecky, 721 F.3d 456, 461–63 (7th Cir. 2013), that reasonable 

observers would doubt the impartiality of a former state 

judge who is asked to assess the validity of her own decision 

after coming to the federal bench, and that 28 U.S.C. §455(a) 
No. 15-1221 3

therefore requires the case to be heard by a different federal 

judge.

Indiana asks us to distinguish Weddington on the ground 

that Fowler contests the performance of his appellate counsel rather than the decision by Judge Magnus-Stinson, who 

sentenced him before Mills was released. But Fowler’s challenge remains one to his 30-year sentence, and if he prevails 

he will be entitled to a new appeal in the state system in 

which Indiana’s appellate judiciary will have to decide 

whether the sentence was properly imposed, given the terms 

of state law and Fowler’s plea bargain.

Federal judges routinely hear challenges to their own 

convictions and sentences under 28 U.S.C. §2255. Section 

2255(a) designates the motion as one in the criminal case, 

which implies the propriety of assignment to the original 

judge. Federal judges routinely are asked to change their 

minds (as in motions to alter the judgment under Fed. R. Civ. 

P. 59 and 60, or petitions for rehearing on appeal), and no 

one supposes that such a request disqualifies the judge under §455(a). But the state–federal sequence is different. Section 2254 is designed to ensure that a fresh pair of eyes looks 

at the matter, from a different perspective. That goal cannot 

be accomplished if the federal judge who entertains the petition under §2254 also was the state judge who imposed or 

affirmed the judgment now being contested.

The only sensible approach is all or none: a federal judge 

can hear a collateral attack on a conviction or sentence she 

imposed or affirmed as a state judge, or she cannot. Trying 

to work through the details of the petitioner’s federal theory 

in relation to the judge’s role on the state bench would be a 

formula for uncertainty, offering reasons to doubt the ade-
4 No. 15-1221

quacy of the federal system. For the reasons given above and 

in Weddington, “all” is better than “none”: a federal judge always is disqualified from hearing a collateral attack on a 

judgment he or she entered or affirmed as a state judge. 

Judge Magnus-Stinson should have turned this proceeding 

over to a different judge.

Indiana maintains, however, that Fowler forfeited his 

opportunity to have the case heard by someone else, because 

he did not ask this court to issue a writ of mandamus that 

would have prevented Judge Magnus-Stinson from deciding 

the case.

Ever since 1985 this circuit has distinguished between 

disqualification under §455(a) and disqualification under 

§455(b). See United States v. Balistrieri, 779 F.2d 1191, 1204–05 

(7th Cir. 1985). We held in Balistrieri that §455(b) creates personal rights that can be vindicated on appeal but that 

§455(a), which concerns the appearance of impropriety, creates only systemic interests—important to the judicial system but not individual litigants—which may be vindicated 

only before final decision in the district court. Once the district judge has acted, Balistrieri holds, any bad appearance 

has come to pass; and when there is no actual bias the litigant has no personal interest in upsetting an untainted 

judgment. Many decisions since Balistrieri decline to consider arguments that depend on §455(a). See, e.g., United States 

v. Johnson, 680 F.3d 966, 979 (7th Cir. 2012); United States v. 

Diekemper, 604 F.3d 345, 351–52 (7th Cir. 2010); United States 

v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989).

Some of our recent decisions have shown unease about

Balistrieri’s distinction between §455(a) and §455(b). Weddington found a reason to remand that did not depend on 
No. 15-1221 5

§455(a) and added that, once the case returned to the district 

court, it must be assigned to a different judge. More recently, 

a panel departed from Balistrieri because only a short time 

had elapsed between when mandamus could have been 

sought and the entry of final judgment. United States v. Herrera-Valdez, No. 14-3534 (7th Cir. June 17, 2016), slip op. 5–8. 

One member of this court has called for Balistrieri’s overruling, see United States v. Boyd, 208 F.3d 638, 649–52 (7th Cir. 

2000) (Ripple, J., dissenting). Judge Ripple observed that no 

other circuit has followed Balistrieri, that several have rejected its approach, and that it appears to be inconsistent with 

two decisions by the Supreme Court that have decided 

§455(a) issues initially raised by appeal rather than mandamus. See Liteky v. United States, 510 U.S. 540 (1994); Liljeberg 

v. Health Services Acquisition Corp., 486 U.S. 847 (1988).

We have resurveyed the appellate precedents. The situation identified by Judge Ripple in 2000 still holds: No court 

other than the Seventh Circuit refuses to consider §455(a) arguments on appeal. Some of the other circuits reject this circuit’s doctrine after citing our decisions; others simply ignore

Balistrieri and its successors. See, e.g., Hardy v. United States, 

878 F.2d 94, 98 n.4 (2d Cir. 1989) (“Unlike the Seventh Circuit, this Circuit will entertain a section 455(a) recusal claim 

on direct review”); United States v. Cooley, 1 F.3d 985, 995–96 

& n.9 (10th Cir. 1993); In re School Asbestos Litigation, 977 F.2d 

764, 777–78 & n.12 (3d Cir. 1992); Diversified Numismatics, Inc. 

v. Orlando, 949 F.2d 382, 384 (11th Cir. 1991). At least three 

other circuits have considered §455(a) issues on appeal 

without discussion. See, e.g., United States v. Payne, 944 F.2d 

1458, 1476–77 (9th Cir. 1991); United States v. Wade, 931 F.2d 

300, 302–05 (5th Cir. 1991); United States v. Mitchell, 886 F.2d 

667, 671 (4th Cir. 1989). We are the odd circuit out. We ob-
6 No. 15-1221

served in United States v. Corner, 598 F.3d 411, 414 (7th Cir. 

2010) (en banc), that being alone among the circuits justifies 

giving the subject a fresh look. We have done that and conclude that Balistrieri and its successors must be overruled to 

the extent they hold that arguments under §455(a) cannot be 

raised on direct appeal.

Liteky and Liljeberg do not themselves doom Balistrieri. 

The question was not raised by the litigants in either case 

and was not discussed by the Justices. The Court may have 

assumed the propriety of deciding §455(a) questions on appeal, but an assumption is not a holding.

The problem with Balistrieri is its lack of textual support 

in §455. Here is the full text of §455(a) and (b):

(a) Any justice, judge, or magistrate judge of the United States 

shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a 

party, or personal knowledge of disputed evidentiary facts 

concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously 

practiced law served during such association as a lawyer 

concerning the matter, or the judge or such lawyer has been 

a material witness concerning it;

(3) Where he has served in governmental employment and 

in such capacity participated as counsel, adviser or material 

witness concerning the proceeding or expressed an opinion 

concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his 

spouse or minor child residing in his household, has a finan-
No. 15-1221 7

cial interest in the subject matter in controversy or in a party 

to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of 

relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or 

trustee of a party;

(ii) Is acting as a lawyer in the proceeding; 

(iii) Is known by the judge to have an interest that could 

be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material 

witness in the proceeding.

These provisions are parallel. Both (a) and (b) lay on the 

judge a duty to step aside if some circumstance holds. Nothing in the language or structure of this statute says or implies that the duty under subsection (a) must be enforced exclusively by mandamus, while the duty under subsection (b) 

may be enforced on appeal.

Our opinion in Balistrieri did not rely on the text or context of §455. It derived the mandamus rule from a belief that 

problems with the appearance of partiality should be resolved as early in the case as possible, coupled with a belief 

that the “appearances” problem concerns the judiciary as a 

whole rather than the rights of any litigant. See 779 F.2d at 

1204–05. These are worthy considerations, but they are not 

part of the statute. The Supreme Court has told us that judges must enforce statutes as Congress wrote them and the 

President approved them, without adding or subtracting features that the judges deem to be wise policy. See, e.g., Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2033–34

(2014).
8 No. 15-1221

And if wise policy counts, it is hard to see why it is invariably wise to limit issues under §455(a) to review by mandamus. A request for interlocutory review may come too early 

in a case, before the features that call a judge’s impartiality 

into question have become apparent. A court of appeals issues a writ of mandamus only when the applicant has an indubitable right to that prerogative writ or there is no other 

way to correct a manifest injustice. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 111 (2009); Cheney v. United States District Court, 542 U.S. 367, 380–81 (2004). Factual or 

legal uncertainty means no mandamus. That may make it 

unduly difficult to enforce §455(a), compared with consideration in an appeal where the question is whether the district 

judge was right to serve, rather than whether disqualification 

was certainly required.

More than that: the assumption in Balistrieri that litigants lack personal rights in the appearance of impartiality 

is doubtful. True enough, the judicial system and the public

as a whole want to be confident that impartial judges are assigned to cases. But we regularly rely on litigants to enforce 

procedural rules, and §455(a) is one of those rules no less 

than §455(b). Judges sometimes say that §455(a) is about the 

appearance of impropriety, while §455(b) is about actual bias. No one doubts that litigants are entitled to have their cases heard by unbiased judges, but it is too simple to say that 

every part of §455(b) concerns actual bias. Section 455(b)(4) 

disqualifies a judge who has a financial interest in the case—

and also a judge who acts as a fiduciary for someone else 

who does (even when the judge has no interest at all), as 

well as a judge whose spouse or minor child has a financial 

interest. Section 455(d)(4) defines “financial interest” to include even a single share of stock, so that a judge is disquali-
No. 15-1221 9

fied if he is a fiduciary for an entity (say a private college on 

whose board he serves as an alumni representative) that

owns one share of stock in a huge corporation, whose value 

cannot be materially affected by the litigation. It may be wise 

to remove all question by following the rule that the smallest, indirect interest is disqualifying, but that’s not what “actual bias” means. Enforcement of §455(b) thus often is about 

the maintenance of appearances—and if its rules can be vindicated on appeal, why can’t the rule of §455(a) be vindicated on appeal? We hold today that it can be.

Next we must consider the possibility that Fowler forfeited his right to raise §455(a) on appeal by not filing a motion 

in the district court seeking the judge’s disqualification. Several of this circuit’s decisions hold that failure to file a motion 

in the district court waives the right to present the contention on appeal. See, e.g., United States v. Ruzzano, 247 F.3d 

688, 694 (7th Cir. 2001); Johnson, 680 F.3d at 979–80. We assume that these decisions mean forfeiture rather than waiver; it takes an intentional step to waive a right. See United 

States v. Olano, 507 U.S. 725, 733–34 (1993). But under these 

decisions the upshot of either forfeiture or waiver is the 

same: §455 will not be enforced on appeal.

Other circuits are all over the lot. Some treat silence as either waiver or forfeiture; those that classify the omission as 

forfeiture allow review for plain error. See, e.g., Knight v. 

Mooring Capital Fund, LLC, 749 F.3d 1180, 1191 (10th Cir. 

2014); In re Lupron Marketing and Sales Practices Litigation, 677 

F.3d 21, 37 (1st Cir. 2012); Clemmons v. Wolfe, 377 F.3d 322 (3d 

Cir. 2004); United States v. Berger, 375 F.3d 1223, 1227–28 (11th 

Cir. 2004); Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203, 216 

(5th Cir. 1998); United States v. Barrett, 111 F.3d 947, 951–53 
10 No. 15-1221

(D.C. Cir. 1997); United States v. Owens, 902 F.2d 1154, 1155–

57 (4th Cir. 1990). Two circuits require a motion in the district court only if the record shows that the litigant knew 

enough to see that a motion was necessary (or prudent). See, 

e.g., United States v. Brinkworth, 68 F.3d 633, 639 (2d Cir. 

1995); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 

1407, 1414 (8th Cir. 1983). Some circuits have decisions in 

multiple lines, sometimes using waiver doctrine, sometimes 

forfeiture doctrine, and sometimes excusing the absence of a 

motion.

The premise of decisions such as Ruzzano and Johnson is 

that litigants must take the initiative. That is a norm in litigation—but §455 is an exception to the norm, and its language 

affects what role the litigants must play. Both subsection (a) 

and subsection (b) say that the judge “shall disqualify himself when” certain things are true. The judge, not the litigant, 

must take the initiative.

The judge, not the litigant, knows what investments are 

held by members of the household (§455(b)(4)) and who 

employs the judge’s relatives within the third degree 

(§455(b)(5)). Litigants may be at a disadvantage on the law as 

well as the facts. Fowler was sentenced by Judge MagnusStinson in the state case and likely recognized that the Judge 

Magnus-Stinson assigned to the federal case is the same person (though we cannot be sure that he knew this; different 

people with the same name may serve in state and federal 

judiciaries). But Fowler, who lacked the benefit of counsel in 

the district court, may not have known about Weddington

and therefore may not have understood that he has a right to 

a decision by a different federal judge. That may be why this 

issue did not surface until we appointed counsel to represent 
No. 15-1221 11

Fowler on appeal. We expect pro se litigants to brush up on

the law behind their claims; we do not require them to come 

across all other rules of the judicial system. Because the 

judge knows both the facts and the law about disqualification better than any litigant, even a litigant with a lawyer, it 

is well to stick with the statutory language: the judge must 

disqualify herself when the statute so provides whether or 

not the litigant files a motion.

Section 455(e) clears up any doubt on that score. It says 

that a judge may accept a waiver of disqualification under

subsection (a), but only if “it is preceded by a full disclosure 

on the record of the basis for disqualification.” The statute 

does not permit an otherwise-disqualified judge to serve just 

because the litigant fails to make the appropriate motion. Instead the judge must take the initiative and make a “full disclosure on the record”—and even then only a waiver by the 

litigant allows the judge to continue in an adjudicatory capacity. If a litigant’s silence after a judge’s disclosure does not 

remit the disqualification imposed by §455(a), a litigant’s silence without full disclosure cannot do so. (The fact that remittal of disqualification under §455(a) is possible, but only 

with a litigant’s waiver, also reinforces the conclusion stated 

earlier that §455(a) creates personal rights, which implies 

that they can be vindicated on appeal.)

The Supreme Court has allowed litigants to seek disqualification despite the absence of a protest in the court where 

the disqualified judge sat. See Nguyen v. United States, 539 

U.S. 69 (2003). Both Nguyen and the recent Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), treat the participation of a 

disqualified judge as a form of structural error, which may 

be noticed at any time. In both Nguyen and Williams the dis-
12 No. 15-1221

qualified judge participated in an appellate court that decided the case unanimously. The Supreme Court reversed both 

judgments even though both cases likely would have come 

out the same way with a different complement of judges.

It follows from this discussion that Ruzzano, Johnson, and 

any similar decisions in this circuit must be, and are now, 

overruled to the extent they forbid appellate review of judicial-disqualification issues in the absence of a motion in the 

district court.

Because this opinion overrules two lines of decisions in 

this circuit, it was circulated before release to all judges in 

active service. See Circuit Rule 40(e). None of the judges favored a hearing en banc.

The judgment is vacated, and the case is remanded for 

decision by a different district judge.