2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-2004

Clemmons v. Wolfe

Precedential or Non-Precedential: Precedential

Docket No. 02-4457

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Recommended Citation

"Clemmons v. Wolfe" (2004). 2004 Decisions. Paper 428.

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

 

No. 02-4457

 

CHARLIE CLEMMONS,

Appellant

v.

WILLIAM J. WOLFE, Supt.;

DISTRICT ATTORNEY OF THE

COUNTY OF DAUPHIN; ATTORNEY

GENERAL OF THE STATE OF

PENNSYLVANIA, *GERALD J.

PAPPERT

*(Amended - See Clerk’s Order dated

3/10/04)

 

On Appeal from the United States

District Court for the Middle District of

Pennsylvania

(D. C. No. 02-cv-00561)

District Judge: Hon. William W.

Caldwell

 

Argued May 5, 2004

Before: SLOVITER and FUENTES,

Circuit Judges, and POLLAK, District

Judge*

(Filed: July 29, 2004)

 

Patricia C. Shea (Argued)

David R. Fine

Kirkpatrick & Lockhart

Harrisburg, PA 17101

Attorneys for Appellant

Francis T. Chardo (Argued)

James P. Barker

Deputy District Attorney

Office of District Attorney

Harrisburg, PA 17101

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The District Court judge who

dismissed Appellant’s petition for a writ of

habeas corpus had been the state court

judge who presided over his criminal trial.

The principal question we consider is

whether the judge should have sua sponte

recused from the habeas proceeding.

* Hon. Louis H. Pollak, Senior

United States District Judge for the

Eastern District of Pennsylvania,

sitting by designation.
2

I.

Appellant Charlie Clemmons’

conviction arose out of a 1980 incident of

“road rage,” in which Clemmons shot and

killed another motorist following an

altercation stemming from a traffic

incident. App. at 10. Clemmons was

convicted by a jury in the Court of

Common Pleas of Dauphin County,

Pennsylvania of first-degree murder.

Then-state judge William W. Caldwell

presided over the 1981 state court trial

and, following Clemmons’ conviction,

Judge Caldwell sentenced him to life

imprisonment for first-degree murder. 18

Pa. Const. Stat. Ann. § 2502. Clemmons

filed a series of four petitions in state court

for collateral relief under the Post

Conviction Relief Act (PCRA), 42 Pa.

Cons. Stat. Ann. §§ 9541 et seq., and its

predecessor statute. Each petition was

denied, and the denials of the first three

petitions were affirmed by the state

Superior Court. The fourth petition was

dismissed.

On February 7, 2002, Clemmons

filed a habeas corpus petition in federal

court pursuant to 28 U.S.C. § 2254. His

petition was eventually assigned to Judge

Caldwell, who by then had been appointed

to the United States District Court for the

Middle District of Pennsylvania. On

September 27, 2002, Clemmons applied

for appointment of counsel. On November

27, 2002, Judge Caldwell issued an

opinion in which he acknowledged that he

had “presided at petitioner’s trial” in state

court. App. at 10. He then denied

Clemmons’ habeas petition as untimely

and all other pending motions as moot.

There was no specific reference to

Clemmons’ request for counsel.

Clemmons filed an application for

a Certificate of Appealability (COA) to

this court. We granted the COA directed

to the following question: whether the

district court judge was required to recuse

himself from hearing the federal habeas

corpus proceedings attacking the trial and

conviction over which he presided when

he was a state court judge. The same day

we appointed counsel to represent

Clemmons in this matter against Appellees

William J. Wolfe, District Attorney of the

County of Dauphin, and Pennsylvania

Attorney General Gerald J. Pappert.1

Three months later we amended the COA

to add the following issue: whether the

district court judge abused his discretion

by deciding the merits of Appellant’s

petition for writ of habeas corpus without

first addressing Appellant’s request for

counsel.

On appeal, Clemmons contendsthat

Judge Caldwell was required to recuse

himself sua sponte in Clemmons’ 28

U.S.C. § 2254 habeas action challenging

the trial and conviction over which Judge

Caldwell formerly presided as a state court

judge. Although Clemmons does not

explicitly so state, it appears he argues that

 

1 The list of Appellees was

amended per Order of the Clerk of Court

dated March 10, 2004.
3

this presents a legal question over which

we would have plenary review. Second,

Clemmons contends that the District Court

abused its discretion by failing to address

the merits of Clemmons’ application for

appointment of counsel before dismissing

the motion as moot.

II.

The relevant federal statute, 28

U.S.C. § 455(a), provides that “[a]ny

justice, judge, or magistrate judge of the

United States shall disqualify himself in

any proceeding in which his impartiality

might reasonably be questioned.” 28

U.S.C. § 455(a).2 The Supreme Court has

stated that the purpose of this provision is

“to promote public confidence in the

integrity of the judicial process.” Liljeberg

v. Health Servs. Acquisition Corp., 486

U.S. 847, 860 (1988).

Clemmons claims that Judge

Caldwell created the appearance of

impropriety by failing to recuse himself in

the habeas proceeding because he had

presided over the state trial. Because

Clemmons did not object to Judge

Caldwell’s failure to recuse in the habeas

proceeding, a “plain error standard of

review applies.” United States v.

Dalfonso, 707 F.2d 757, 760 (3d Cir.

1983) (citations omitted). We may

overlook the failure to object where the

“error seriously affects the fairness,

integrity or public reputation of judicial

proceedings.” United States v. Olano, 507

U.S. 725, 732 (1993) (internal quotation

marks and citations omitted). On its face,

the error complained of in this case – a

federal judge sitting in review of the

propriety of the state proceedings

conducted by that judge – seriously affects

the fairness and public reputation of the

judicial proceedings, and thus we proceed

to consider whether the habeas judge

should have sua sponte recused

notwithstanding Clemmons’ failure to

raise the issue in the habeas proceeding.

We have previously stated that the

“public’s confidence in the judiciary . . .

may be irreparably harmed if a case is

allowed to proceed before a judge who

appears to be tainted.” In re Kensington

Int’l Ltd., 353 F.3d 211, 220 (3d Cir.

2003) (emphasis in original) (internal

quotation marks and citation omitted).

When Congress amended Section

455(a) in 1974, it replaced the statute’s

formerly subjective standard with an

objective one, stating:

Subsection (a) of the

amended section 455

contains the general, or

catch- all, provision that a

judge shall disqualify

himself in any proceeding in

which “his impartiality

might r easo na bl y b e

questioned.” This sets up an

objective standard, rather

than the subjective standard

 

2 Clemmons disclaims any reliance

on 28 U.S.C. § 144, which requires a

showing of bias on the part of the judge.
4

set forth in the

e x isting statu t e

through use of the

phra s e “in his

opinion.”

H.R. Rep. No. 93-1453 (1974), reprinted

in 1974 U.S.C.C.A.N. 6351, 6354-55.

The bedrock principle of a

hierarchal judiciary that “[n]o judge shall

hear or determine an appeal from the

decision of a case or issue tried by him” is

embedded in 28 U.S.C. § 47, a statute

inapplicable here because its plain

language only applies to cases on

“appeal,” rather than habeas petitions. The

absence of a directly applicable statute in

no way diminishes the importance to a

litigant of review by a judge other than the

judge who presided over the case at trial.

Of course, a habeas action is not an appeal

from the state court action. The state

courts provide the appeal process.

However, a habeas action provides the

criminal defendant with the opportunity to

have a federal court review the state

proceedings for constitutional infirmities.

In this respect, there is no reason why the

same rules governing independence,

conflict of interest, or appearance of

partiality should not apply.

Although this court has not

confronted the precise issue at bar, at least

two3 other circuits have addressed this

issue and stated that a federal judge should

recuse himself or herself from hearing

habeas petitions if s/he participated in the

petitioner’s state court proceedings. An

almost identical issue was considered by

the Seventh Circuit in Russell v. Lane, 890

F.2d 947 (7th Cir. 1989). In that case, the

district court judge considered a habeas

petition even though that judge had

previously been a member of the panel of

the state appellate court that affirmed the

conviction. On appeal, the Court of

Appeals for the Seventh Circuit stated that

the judge in question:

was being asked to find that

he had a ffirmed an

unconstitutional conviction,

and, implicitly, that by

doing so he had become

comp lic it in sen din g

[petitioner] to prison in

violation of [petitioner’s]

constitutional rights . . . . A

federal habeas corpus

proceeding brought by a

state prisoner is not a

request to a state judge to

reconsider his ruling. It

follows the exhaustion of

 

3 Although the parties have called

our attention to two decisions of the

Sixth Circuit involving similar issues to

the case at bar, Morgan v. Money, 210

F.3d 372 (6th Cir. 2000) (unpublished)

and Taylor v. Campbell, 831 F.2d 297

(6th Cir. 1987) (unpublished), we decline

to rely upon them because they are both

designated as unpublished and hence not

precedential.
5

the petitioner’s state

remedies and is

addressed to a judge

who was not a

member of th e

state-court panel that

affirm e d th e

p e t itioner’ s

conviction and who

had no emotional

com mitm ent t o

vindicating state

justi c e a s

administered in the

petitioner’s case.

Id. at 948. The court concluded that the

petitioner “was entitled to have his habeas

corpus petition heard by a judge who had

not participated in his conviction” and thus

it remanded the matter to permit the

petitioner the opportunity to file a motion

to vacate the order of the district judge that

dismissed several of petitioner’s claims.

Id.

Similarly, in Rice v. McKenzie, 581

F.2d 1114 (4th Cir. 1978), the Fourth

Circuit considered whether a federal

district judge, who formerly presided as

the chief justice of the state supreme court

that reviewed the defendant’s claim, could

consider those claims in the context of a

habeas proceeding in the federal forum

without running afoul of Section 455(a).

The court noted that under 28 U.S.C. § 47

a federal judge may not adjudicate the

appeal of an issue or case which s/he tried

as a lower court judge because a

reasonable person might doubt the

impartiality of a judge in such a position.

Id. at 1117 (“To say the least, it would be

unbecoming for a judge to sit in a United

States Court of Appeals to participate in

the determination of the correctness,

propriety and appropriateness of what he

did in the trial of the case.”). Although it

recognized that Section 47 was not at issue

in the case before it at that time, the court

stated that “[t]he same principle is

involved” because “in federal habeas

corpus cases the federal district judges do

sit in review of the proceedings in the state

courts.” Id. That review is designed to be

an independent one, as Justice Blackmun

noted when he stated “§ 2254 motions

anticipate that the federal court will

undertake an independent review of the

work of the state courts, even where the

federal claim was fully and fairly litigated”

in the state court. Reed v. Farley, 512 U.S.

339, 362 (1994) (Blackmun, J., dissenting)

(emphasis added) (citations omitted).

Appellees contend that Clemmons’

recusal claim should fail because the

record does not show any bias or prejudice

by Judge Caldwell. We certainly agree

that there is no evidence that the judge

exhibited any bias against Clemmons. But

that is not dispositive because actual bias

is not a requisite element for a valid claim

under Section 455(a). In fact, Judge

Caldwell granted Clemmons permission to

amend his habeas petition, which negates

any inference of partiality, the focus of

section 455(a). Therefore, the asserted

absence of actual bias is irrelevant; the

mere appearance of bias still could

diminish the stature of the judiciary. See
6

In re Kensington Int’l Ltd., 353 F.3d at

220.

Appellees correctly note that twenty

years have passed since the time that Judge

Caldwell presided over Clemmons’ state

court trial and they argue that Clemmons

raised the recusal claim as a matter of

strategy only after Judge Caldwell denied

his habeas petition. They rely on Martin v.

Monumental Life Insurance Co., 240 F.3d

223, 235-237 (3d Cir. 2001), where we

rejected a claim that the district court

judge, who had recused in a related case,

violated Section 455(a) because he did not

recuse himself in a second proceeding

“involv[ing] the same principals,

witnesses, [and] insurance products.” Id.

at 231. The basis for the judge’s first

recusal was that he formerly had been a

partner at the law firm that represented the

defendant. However, the district judge had

resigned from the firm and terminated his

financial arrangements with it six years

prior to that case, and had never

represented the defendant while at the

firm. In light of these facts, we stated:

In the instant matter, the

relationship between the

trial judge and the [judge’s

former] firm had terminated

several years before the case

commenced; there was no

blood relationship between

the trial judge and anyone in

the [judge’s former] firm;

there is no claim of any bias

by the trial judge; and the

trial has been concluded.

We see no error in the

District Court’s refusal to

grant the motion [to recuse].

Id. at 237. In particular, we emphasized

that the appellant in that case did not

challenge any of the judge’s factual

findings at trial and only moved to recuse

the judge “after a lengthy and arduous

trial” in which the judge “invested

substantial judicial resources.” Id. at 236,

237. We speculated that “all of these

considerations suggest that plaintiff’s

motion is a desperate effort to overturn an

adverse decision.” Id. at 236.

Martin is inapposite. Martin

involved a judge who was challenged on

the basis of his prior institutional

affiliation on a matter on which he did not

work. Here, the issue is the appearance of

partiality because a judge was asked to

review allegations regarding his own

rulings at the state court trial. Moreover,

unlike in Martin, where the district court

judge had expended considerable time and

effort in a “lengthy and arduous trial,” 240

F.3d at 236, Judge Caldwell issued only a

single decision denying Clemmons’

motions and did not hold any hearings. In

short, there is little risk of inefficiency.

Second, although M artin

emphasized the passage of time between

the state court trial and the federal habeas

proceeding, nothing in the text of Martin

suggests that this factor is dispositive.

Although the passage of time would be

relevant in a situation in which the recusal

issue does not involve the federal judge’s
7

review of his or her actions as a state

judge, the case before us raises the latter

issue and the passage of time cannot

overcome a reasonable person’s doubts

about a judge’s impartiality in judging his

or her own past works.

Appellees’ contention that the error,

if any, in the district judge’s failure to

recuse did not cause Clemmons prejudice

because any district court judge who had

been assigned the case ultimately would

have found Clemmons’ habeas petition to

be untimely is beyond the point. In

Liljeberg, the Supreme Court instructed

that, in determining whether a decision

should be vacated based on a federal

judge’s failure to recuse when he had an

interest in the subject matter, the court

should “consider the risk of injustice to the

parties in the particular case, the risk that

the denial of relief will produce injustice

in other cases, and the risk of undermining

the public’s confidence in the judicial

process” while bearing in mind that

“justice must satisfy the appearance of

justice.” 486 U.S. at 864 (internal

quotation marks and citation omitted).

The Supreme Court has never considered

a situation such as the one before us.

Regardless of the merits of

Clemmons’ habeas petition, we find

dispositive that the District Court’s failure

to recuse has created an appearance of

impropriety that runs “the risk of

undermining the public’s confidence in the

judicial process.” Id.; see also Alexander

v. Primerica Holdings, Inc., 10 F.3d 155,

162 (3d Cir. 1993) (“[T]he public’s

confidence in the judiciary, which may be

irreparably harmed if a case is allowed to

proceed before a judge who appears to be

tainted,” requires that “justice must satisfy

the appearance of justice.”) (quoting In re

Asbestos Litig., 977 F.2d 764, 776, 782

(3d Cir. 1992)). It is important to note that

nothing in the record suggests that Judge

Caldwell, a conscientious and hardworking judge, proceeded with any sort of

ill motive. However, the focus of our

inquiry is not his actual bias, but rather,

whether a reasonable person might ascribe

such a motive to any judge tasked with

reviewing his past state court rulings in a

federal habeas case. For the reasons set

forth, we conclude that we are obliged to

vacate the judgment and remand to a

different district court judge.

III.

As we noted above, the federal

statute on recusals does not specifically

cover the situation raised by this case. In

previous situations, we have decided that

we should use our supervisory powers to

fill a gap on important procedural or

ethical matters on a variety of issues.4

 

4

See, e.g., Forbes v. Township of

Lower Merion, 313 F.3d 144, 149 (3d

Cir. 2002) (we “exercise our supervisory

power to require that future dispositions

of a motion in which a party pleads

qualified immunity include, at minimum,

an identification of relevant factual

issues and an analysis of the law that

justifies the ruling with respect to those
8

The Supreme Court has explicitly

recognized that the courts of appeals “have

broad powers of supervision” over federal

proceedings. Bartone v. United States,

375 U.S. 52, 54 (1963) (per curiam); see

also United States v. Hasting, 461 U.S.

499, 505-07 (1983) (referring to

supervisory authority of federal courts

generally); id. at 513 n.1 (Stevens, J.,

concurring) (same); United States v.

Payner, 447 U.S. 727, 734-36 & n.7

(1980).

Because of the absence of any

applicable statute, and in order to avoid the

recurrence of this situation, we now

exercise our supervisory power to require

that each federal district court judge in this

circuit recuse himself or herself from

participating in a 28 U.S.C. § 2254 habeas

corpus petition of a defendant raising any

issue concerning the trial or conviction

over which that judge presided in his or

her former capacity as a state court judge.5

issues.”); United States v. Eastern Med.

Billing, Inc., 230 F.3d 600, 607-13 (3d

Cir. 2000) (canvassing several

supervisory power decisions in Third

Circuit); Vadino v. A. Valey Eng’rs, 903

F.2d 253, 259 (3d Cir. 1990) (exercising

supervisory power “to require the district

courts in this circuit to accompany grants

of summary judgment hereafter with an

explanation sufficient to permit the

parties and this court to understand the

legal premise for the court's order.”);

Quality Prefabrication, Inc. v. Daniel J.

Keating Co., 675 F.2d 77, 81 (3d Cir.

1982) (ruling that “a dismissal of a

complaint with prejudice as a Rule 37

sanction must be accompanied by some

articulation on the record of the court's

resolution of the factual, legal, and

discretionary issues presented”). In

particular, we have issued supervisory

rules on the issue of regarding the

appearance of judicial impropriety. See,

e.g., Alexander, 10 F.3d at 167

(exercising supervisory power to reassign

ERISA case to a different district judge);

Haines v. Liggett Group, Inc., 975 F.2d

81, 98 (3d Cir. 1992) (“[T]he appearance

of impartiality will be served only if an

assignment to another judge is made, and

we will, pursuant to our supervisory

power, so direct.”).

 

5 Of course, nothing in this opinion,

which relates only to the role of a federal

judge pursuant to 28 U.S.C. § 2254, is

designed to apply to the role of a federal

judge under 28 U.S.C. § 2255. In fact,

Rule 4(a) of the Rules Governing § 2255

Habeas Proceedings for United States

District Courts directs that a habeas

petition “be presented promptly to the

judge of the district court who presided

at the movant’s trial and sentenced him .

. . .” In contrast to the position of a

federal judge reviewing a § 2255

petition, who is effectively reconsidering

his rulings at the trial, a federal judge

reviewing a § 2254 petition cannot

reconsider the actions taken by a state

judge, even if s/he had been the state

judge. In his or her new capacity, s/he

would be reviewing the actions of
9

We thus shall vacate the District Court’s

decision to deny Clemmons’ habeas

petition as well as his petition for

appointment of counsel6 and we will

remand with instructions that the case be

assigned to a different district court judge.

another court. The difference is

institutional rather than ethical. There is

no basis to apply the supervisory rule

enunciated here to the § 2255 situation.

 

6 Because we will vacate and

remand each of the District Court’s

decisions based on the possible

appearance of bias, we need not reach

the merits of Clemmons’ argument that

the District Court’s denial of his motion

for appointment of counsel was deficient

for failure to include a statement of

reasons.