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

7-29-2004 

# C le mmons v

. W ol fe

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

D ocke t N o . 02-4457

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. e du/thir dc ir c uit_2004/428PRECE DENTI AL

UNIT ED STA TES C OURT OF AP PEA LS F OR TH E TH IRD CIR CU IT

No. 02-4457

CHAR LIE CLEMM ONS,

Appellant

v.

W ILL IA M J. W OL FE , Su pt.; DIS TRI CT ATT ORNEY OF THE COUNTY O F DAUPHIN; ATTORNEY GENERAL OF THE STATE OF PEN NSY LVA NIA, *G ERA LD J.

PAPPERT
*(Amended - See Clerk’ s Order dat ed

3/10/04)

On Appeal from the United St ates Distri ct Court f

or the Middle Distri ct of Pen nsylvan ia (D. C. No. 02-cv- 00561) Di st r i ct Ju dg e: Ho n. Wi l l i am W. Cald we ll

Argued May 5, 2004

Before: SLOVITER and FUENTE S, Circu it Judges , and PO LL AK , Distri ct Judge *

(Fil ed: Jul y 29, 2004)

Patri cia C. Shea ( Argued) David R. Fine Kirkpa trick & L ockha rt Harrisburg, PA 17101
Attorney s for Appell ant

Francis T. Chardo (Argued) James P. Barker Deputy Dis tri ct Attorney Office of District

Attorney Harrisburg, PA 17101
Attorney s for Appell ee

OPINI ON OF THE COURT

SL OV ITE R, Circu it Judge

.
The Distri ct Court j udge who dismis sed App ellant’s petit ion for a wri t of habeas corpus h ad been the state court judge wh o pre sided over his crimin al trial. The princi pal question we c ons ider is whether the judge shoul d have sua spon te recused fr om the habeas pr oceeding.

* Hon. Lo uis H

. Pol lak, Senior United States Distri ct Judge for the Eastern Distri ct of Pennsy lvania , sitting by designation.2 I.
Appellant

Charlie Clemmons’ conviction arose out

of a 1980 incide nt of “road rag e,” in which Clemmons shot and kill ed another mot orist following an alte rcati on stemm ing fro m a tra ffic i n ciden t. App. at 10. Clemmons was convict ed by a ju ry i n the Court of Comm on Pl ea s o f D au ph in C ou nt y, Pennsylvania o f first-degree m urder. Then-state judg e W illiam W . Cald we ll presi ded over the 1981 s tate court t rial and, follow in g Clemmons’ conviction, Judge Caldwell se ntenced hi m to l i fe impris onment for fir st-de gree murder. 18 P a. Co nst. Stat. A nn. § 2 502 . Cle mmon s file d a seri es of four petiti ons in state court for c oll ateral rel ief under the Post Convicti on Relief Act ( PCRA ), 42 Pa. Cons. S tat. Ann. §§ 9541 et seq. , and its predecess or s tatute. Each petiti on was d enie d, and the deni als of t he firs t three petit ions we re aff irmed by the state Superior Cour t. The fourth petiti on was dismis sed.

O n F ebruary7, 2002, Cl emmons file d a ha beas corpus petit ion in fe deral court pursuan t to 28 U .S.C. § 225 4. H is petit ion was eve nt ually

assigne d to Judge Cald we ll, who by then had be en appoint ed to the Unite d States Distri ct Court f or the M iddle Distric t o f

Pen ns y lv an ia . O n S e ptember27, 2002, Cl emmons applied for appo intme nt of c oun sel. On Novem ber 27, 200 2, Jud ge C aldw ell is sue d an opinion in which he acknowledge d that he had “pres ided a t petitione r’s trial” in s tate
cour t. App. at 10. He then deni ed Clemmo ns’ habe as pe tition as u ntime ly

an d all other pending motions as m oot

. There was no specifi c r efere nce to Clem mo ns’ req uest fo r cou nsel.

Clemmons file d a n applic ation f or
a Certif icate o f A ppea lability (CO A) to this court. We gr ante d the COA directed to the fol lowing q ue sti on: whether t he dist rict court judge was required to recuse hims elf from heari ng the feder al habeas corpus proceedi ngs att acking the tri al and conviction ove r wh ic h he pr es id ed wh e n he was a stat e court j udge . The same day

we appointe d counse l to represent Clemmons in this matter against Appellees Willi am J. Wolfe, Distri ct Attorney of the Co unty of Dau ph in, and Pen nsylvan ia AttorneyGe neral G erald J . Papp ert. 1 Three months l ater

we amended th e COA t o add the fol lowing is sue: whethe r th e d ist rict court j udge abused his discr etion by d eciding the m erits of Ap pellant’s petit ion for w rit of habeas corpus without first addressi ng Appellant ’s reque st for

coun sel.

On appe al, Clem mons contend s tha t Judge Caldwell was required to recuse hims elf s ua spon te in Clemmons’ 28 U.S .C. § 2254 habeas action c halle nging the tri al and convi ction ove r which Judge Cald we ll form erly presided as a state court jud ge. Although Clemmons does not explic itly so state, i t appear s he argues that

1 The list

of Appellees was
amen ded pe r Order o f the Clerk of Co urt dated March 10, 2004.3

this present s a legalquesti on over which

we wou ld have p lenary re vie w. Second, Clemmons contends t

hat the District Cou rt abused it s discreti on by faili ng to address the mer it s of

Cle mmo ns’ applic ation f or appointment

of counsel before di smissi ng the m otion a s mo ot.

II.

The releva nt fed eral st atute , 28 U.S .C. § 45 5(a), provides that “ [a]ny justice, judge, or magist rate j udge of the United States shall dis qualif y himself in any proc eedin g i n w hich h is imp artiality mightre as on ab ly b e questi oned.” 28 U.S .C. § 455(a ). 2 The S uprem e Cou rt has stated that t

he purp ose o f this prov ision is “to p rom ote publi c confidence i n the integri t y of the j udicia l proces s.” Liljeberg

v. Health Servs . Acquisi tion Corp. , 486 U.S. 84 7, 860 (19 88).

Clemmons clai ms that J udge Cald we ll creat ed the a ppearance of impro priety by failing to recu se him self in the habeas proce eding bec ause he had pr esidedover the s tate tri al. Becaus e Clemmons did n ot ob je ct to Judge Caldw ell’s fail ure t o recuse i n the habeas proceedi ng, a “ plain e rror s tandard of

r eview applie s.” United States v

. Dal fonso , 707 F.2d 757, 760 ( 3d C ir

. 1983) (citations omi tted) . We may overlookthe failu re to obj ect where the “error seri ouslyaffe cts the fairness , in tegr ity or publi c reputation of j udicia l pro cee din gs.” United States v. Olano , 507 U.S. 725, 732 (1993) (internal quot ation marks and citations omitt ed). On it s face, the error complained of i n this case – a federaljudge si tti ng in rev ie w of the prop riety of t he stat e proceedi ng s conducted by that judge – seriou sly affec ts the fai rness and publ ic reput ation of the judici al proceedi ngs, and th us we proceed to cons ider w hethe r th e habeas judge shou ld have sua sp onte recuse d notwiths tanding Clem mon s’ f ailure to raise the is sue in t

he habea s p roceedi ng. We have prev iously st ated that the “public’s confidence i n the judi cia ry

. . . may be irreparabl y harmed if a case is allowed to pr oceed before a j udge who appears to b e tai nted. ” In re Kensi ngton Int’l Ltd. , 353 F.3d 211, 220 (3d C ir. 2003) (e mp h asis i n origi nal) ( internal quotation m arks and c itation omitted).

When Co ng ress amended Sect ion 4 55( a) in 1974 , it replaced the statute’s fo rmer ly subjective st andard with a n objective one, stating:

Subsecti on (a) o f the amended secti on 45 5 contai ns the gener al, or catch- all, pr ovi sion th at a judge shall disqu alif y hims elf in anyproceedi ng in which “his impart ia lit y might r easo na bl y b e que stion ed.” This sets up an objective st a ndard, r ather than the subjective stan dard 2 Clemmons discl aims anyreli ance on 28 U .S.C. § 144, which requires a showing of bias on the part of the j udge.4 set forth i n t h e
e x ist ing statu t e t hrough use of th e phra s e “in hi s opi nio n.”

H.R

. Re p. N o. 93 -14 53 ( 197 4), repri nted in 1974 U.S.C.C.A.N. 6351, 6354-55.

The bedroc k princi ple of a hi er archal judicia ry that “[n ]o jud ge sh all hear or de t ermine an appea l from the decisi on of a case or issue tried by him ” is embedd ed in 28 U .S.C. § 47, a s tatute inapp licable h er e bec ause its plain language only applie s to cas es on “ap pea l,” rather

than habeas petit

ions. The absence of a d irectly applic able sta tu te in

no way dimini shes the importanc e to a litigant of revie w by a judge ot

her than t he j udge wh o pre sided over the ca se at tria l

. Of course, a habeas action is not an appeal from the st ate court ac tio n. Th e state
cour ts provide t

he appeal pr oc ess

. How ever, a habeas action provi des the crimina l defe ndan t with th e opp ortun ity to have a fed eral co urt rev iew th e state proceedi ngs for constitution al infirmiti es. In this respect , there i s n o re ason why the

sa me rules gover n ing indepe ndence, confli ct of i nteres t, or appearance of pa rtia lity s ho ul d n ot ap pl y.
Although this court has not confronte d the precise issue at ba r, at least two 3 othercir cuits ha ve ad dresse d this issue and stated that a fed eral jud ge sh ould

recuse himself or

hersel f from hea r ing habeas petit

ions i f s/he parti cipat ed in the petitioner’s s ta te co ur t p ro ce ed in gs . A n almost identi cal i ssue was consi de red by the Sev enth C ircuit in Ru ssell v. Lane , 890 F.2d 947 (7th C ir. 1989). I n that c ase, t he dist rict court j ud ge considered a habeas petit ion even th oug h that j udge had prev iously been a member of the panelof t he st at e ap pel la te cou rt th ataff irme d th e conviction. On appeal , the Court of Ap peals for the Seventh Circuit stated that the judge in question:

was being asked to find that he had a ffirmed a n unconsti tuti onal conviction, and, i m plici tly , that by doing so he had be c ome
co mp lic it in sen din g [petitioner] to p rison in violat ion of [petitioner’ s] consti tuti onal righ ts . . . . A federal habe a s corpu s proceedi ng br ou gh t b y a state prisoner is not a req uest to a state judg e to reconsi der his ruling. It fo ll ows the ex h austi on of

3 Although the parti es have cal led our attention to two decisi ons of the Sixth Circu it involv ing sim ilar issue s to the c ase at ba r, Morgan v. Money , 210 F.3d 372 (6th Cir. 2000) (unpubli shed) and Taylor v . Cam pbell , 831 F.2d 297 (6th Cir . 1987) ( unpublis hed), we decl ine to rely upo n them beca use th ey are bo th designated as unpubli shed and hence not prece dentia l.5 the petition er’s state

re med ies and i s addresse d to a judge who wa s 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 emotion a l

com mitm ent t o vindica t ing stat e justi c e a s administered i n the petit ioner’ s case.

Id. at 948. The court concluded that the petit ioner“was entitled to ha ve his habea s corpus pet iti on heard bya judge who had not parti cipat ed in his conviction” and thus it remande d t he matter to permit

the petit ionerthe op portu nity to file a motion to vacate t

he orderof the di stri ct judge that dismis sed severalof pe ti tioner’s cl aims. Id.

Si m ila rly, in Rice v . Mc Ke nzie , 581 F.2d 1114 (4th Cir . 19 78) , the Fo urth Circu it considered whethera federal dist rict judge , who formerlypresi ded as the chief justice of the state suprem e court that reviewed the de fend ant’s c laim, co uld consider those cl aims in t

he context

of a habeas proceedi ng in the f ederal forum withoutrunn in g afoul of Section 45 5(a). The court noted that

under 28 U.S .C. § 47

a fe de ra l ju dg e m ay not adjudic ate the appeal of an issue or case whichs/he t ried

as a lower court

judge becaus e a
reaso nable perso n m ight d oubt the impar tialit y of a judge i n such a posi tion. Id. at 1117 (“To saythe le ast, it would be unbecoming for a judge to si t in a United States Co urt o f App eals to p articipate in the determination of the corr e ctness, prop riety and appropri ateness of what he did in th e tria l of th e ca se.” ). A lthoug h it recogniz ed that

Section 47 was not

at is sue in the ca se be fore it at that ti me, the court stated that “ [t]he sam e princ iple is in v olved” because “i n federalhabeas corpus cas es the fe deral di stri ct judges do sit in review of the proc eedin gs in th e state
cou rts.” Id. That revi ew is desig ned to be

an independent

one, as J usti ce Blackmun noted when he state d “§ 2254 m o tions anticip ate that the fede ral cou rt will undertake an independent revie w of the work of the st ate courts, even where the federalclai m was fully

and fairl y l iti gated” in the s tate c our t. Reed v. Farl ey , 512 U. S. 339, 362 (1994) (Bl ackmun, J. , dis senti ng) (emph asis added ) (citations omitted).
Appellees contend that Clemmons’ recusalclaim sh oul d fail because the record does notshow any bi as or pre judice by Judg e Ca ldw ell. We certainly agree that there i s no evidence th at the judge exhibited any bi as against Clemmons. But that is not disposi tive be cause actual bia s is not a requ isite elem ent fo r a valid claim under Sec tion 455 (a). I n fac t, J udge Cald we ll granted Cl em m ons p ermis sion to amend his habeas petit

ion, whic h n ega tes any infere nce o f parti alit y, the focus of secti on 45 5 (a). Therefore, the ass erted absence of actualbi as is irr elevant ; the

mere a pp earan ce of bias still co uld diminish the st atur e of the ju dicia ry. See6

In re Ken sington Int’l L td. , 353 F.3d at 220.
Appellees co rrectly note that twent y years have passed si nce the ti me that Judge Cald we ll presid ed ov er Cle mm ons’ s tate court tri al and they argue tha t Cle mmons rais ed the rec usal clai m as a matter of strategyonly afte r Judg e Ca ld wel l denie d his habeas petiti on. They re ly on Martin v. Monum ental Life Insuranc e Co. , 240 F.3d 223, 235- 237 (3 d Ci r. 200 1) , w he re we rejec ted a clai m that the dist rict cou r t judge, who had recu sed in a relat ed case, violated Section 455( a) because he did not

rec use himself i n a second proce eding “involv[ ing] the same pr incipa ls , witnesses, [and] ins urance produc t s. ” Id. at 231 . Th e basis for the judge’s fi rst recusalw as th at h e f or m er ly had be en a partner at the law firm that repres ented the defe ndan t. Ho we ver, the district j udge had resi gned from the firm and te rmina ted his financ ia l arrangem ents with it six years prior to that case , a nd had never repres ented the de fen dant while at the firm. In li ght of the se fact s, we st ated:

In the ins tant matter, the relation ship between the tri al judg e a nd the [jud ge’s forme r] firm had terminated severalyears before the case

commenc ed ; there was no blood relat

ionshi p between the trial judg e and anyone in the [judge’s fo rmer] f ir m; there is no clai m of any bias by the trial j udge; and the tri al has been concl uded. We see no error in the Distri ct Court’s refusa l to grantthe motion [to recuse].

Id. at 237. In par ticul ar, we emphasi zed that the appel lant i n tha t c ase did not chall enge any of the judge’s f ac tual findings at trial and only mo ved to recuse the judge “af ter a l engthyand arduous trial” in which the judge “i nvested substant ial jud icial r eso urc es.” Id. at 236, 237. We spec ulated th at “ all of these consider ations sugg est t h at plaintiff’s motion is a des perate effo rt to overturn an adverse dec isi on.” Id. at 236.

M artin is ina ppo site. Ma rt i n involveda judge who was chall enged on the basis of his p riorinstitutional affil iati on on a matter

on which he did not work. Here, the is sue is t he appearance of partia lit y beca use a judg e w as ask ed to review al le ga ti ons re ga rd in g hi s o wn ruli ngs at the s tate court trial. Moreo ver, unlike in M artin , where the district court judge had expended consider able time and effort in a “lengthy and arduous t rial ,” 240 F. 3d at 2 36 , Ju dg e C ald w ell iss ue d o nl y a si ngle decisi on denyi ng Clemmons ’ motions and did not hold an y hearings. In sh or t, th er e is litt le r isk of in ef fic ien cy.
Second, althoug h M arti n emphasized the pass age of t ime between the st ate court trial and the federalhabeas proceedi ng , nothing i n the te xt of M artin sugg ests that t h is factor is di spositive. Although the pass age of ti me would be relevant in a si tuati on in which the recusal issue does not inv olve th e fed eral j udge’ s7

review of his o r h er actio ns as a state judge, the case before us r aises the latter issue and the pass age of ti me cannot
ove rc ome a reaso nable pe rson’s dou bts about a judge’s impa rtiality in judg ing h is or her own past wo rks.

A ppellees’ cont ention that the error , if any, in the d is trict judg e’s fa ilure to

recuse did not cause Clemmons prej udice because any district c our t judge who had been assigne d the c as e ultim ately wo uld have found Clemmons’ habeas petition to be untim ely is be yo nd the po int. In Liljeberg , th e Supreme Court ins tructed that, in dete rmining whethe r a deci sion sh ould be vacated ba sed on a federa l judge’s fail ure to recuse when he had an int erestin the s ubject

matter , the cou r t shou ld “consider the risk of injus tice to the parti es in the parti cular c ase, t he r isk that the denial of reli ef will produce inju sti ce in other ca ses, and the ri sk of undermini ng the public’ s confidenc e in the judici al p rocess” while bearing in mi nd tha t “justice must satis fy t he appearance of justic e.” 486 U.S. at 86 4 (internal quo tatio n marks a nd citation om itted). The Supreme C ourt has n ever consi dered a situati on such as the one before us.
Regar dle ss of the meri ts of Clemmo ns’ habeas petiti on, w e find disposi tive that

the District Cou rt’s failure to recuse has creat ed an appea rance of im pro priety that r

uns “the risk of undermining the publi c’s confi de nce in the judici al process. ” Id. ; see also Alexander

v. Primeri ca Hol d ings, Inc. , 10 F.3d 155, 162 (3d Cir. 1993) (“[T]he pu blic ’s confidence in th e ju di cia ry, which may be ir repa rably harm ed if a case is allow ed to proceed befor e a judge who appe ars to be taint ed,” requires that “justice must sati sfy the appear ance of

justice. ”) (quoting In re Asbestos Liti g. , 977 F.2d76 4, 776, 782 (3d Cir . 199 2)). It is important to note t hat nothing in the record sugges ts that Judge Cald we ll, a cons cie ntious and hardworking judge, proceeded with any s ort of ill mo ti ve . However, the focus of our i nquiry is not h is actua l bias, bu t r ather , whether a reasonabl e person might ascribe such a mo tiv e to any jud ge task ed w ith reviewing his past

state court r

ul ings i n a federalhabeas case . For the reasons set forth, we conclude that we are obli ged to
vaca te the ju dg ment and remand to a differe nt dis tri ct court

judge.

III.

As we n o ted above, the feder al statute on re cusa ls doe s not sp ecifica lly

cover t he situation raised b y this case. In prev ious situations , we have decide d that

we should use our

sup erv isory pow ers to fill a gap on import ant proce dural or ethic al matters on a varietyof issues. 4

4 See, e. g. , Forbes v. Township of Lower Merion , 313 F.3d 144, 149 (3d Cir. 2002 ) (we “ex ercise our sup ervisory power to requi re that

future di spositions of a motion i n which a party pl eads qua li fi ed i mmuni tyin cl ude , a t mi ni mum, an identific ation of

relevant factual issues and an analy sis of t he law that justifi es the ruling with respect to those8

The Supreme C ourt has explic itl y recogniz ed that t

he cour ts of appeals “have broad pow ers of supervi sion” over federa l proc eedin gs. Bartone v. United States , 375 U.S . 52, 54 (196 3) (pe r curiam ); see also United States v. Hasting , 461 U. S. 499 , 505-0 7 (1983) (r eferri ng t o supervisory autho rity of fed eral co urts generally); id. at 51 3 n.1 (Ste ven s, J., concurri ng) (sam e); United States v. Payner , 447 U.S . 727 , 734 -36 & n.7 (1980).

Becaus e of the abse nce of any applic able stat

ute, and in ord er to avoid the

recurr ence of this situation, we now exercise our supe rvisory power to re quire that each federal district court judg e in this cir cuit recuse hi mself or her self fr o m parti cipating in a 2 8 U .S.C . § 2254 habeas corpus petit

ion of a defenda n t rai sing any is su e concerni ng the trial or conviction

over which th at judge presi ded in his or her forme r capacity as a state court judge. 5 issues.” ); United States v. Eastern Med. Billi ng, Inc. , 230 F.3d 600, 607-13 (3d Cir. 2000) (canvass ing sever al supervisory pow er decisions in T hird Circu it); Vad ino v. A. V aley Eng’rs , 903 F.2d 253, 259 ( 3d Cir. 1990) (exerci sing supervi sorypower “to require the di stri ct
cour ts in this circ uit to ac com pany gr ants of summary j udgment hereafter with an explanation suffi cient

to permit

the parti es and thi s court

to unders tand the legal premise f or the court's order.”); Quality Prefabri cation, Inc. v. Daniel J. Keating Co. , 675 F.2d 77, 81 (3d Cir. 1982) (rul ing that

“a dismis sal of a complaint

with prej udice as a

Rule 37

sa nctio n mus t b e ac comp ani ed b y som e
ar tic ul ati on on th e r ec or d o f th e c ou rt's resol ution of t

he factual , le gal, and discretionary issues presented ”). In particular, we h ave issued supervisory rules on the is sue of regarding the app eara nce of ju dicia l imp rop riety. See, e.g. , Alexander , 10 F.3d at 167 (exerci sing supervisory power to reas sign ER ISA c ase to a diffe rent district judge); Haines v. Li ggett Group, Inc. , 975 F.2d 81, 98 (3d Cir . 1992) ( “[T]he appearance of impartiali ty will be s erved only if an assignment

to anothe r judge i s made, and

we w ill, pursuant to our sup ervisory pow er, so direct.”). 5 Of course, not hing in t his opi nion, which relates onl y t o the rol e of a federal judg e pur suan t to 28 U .S.C. § 225 4, is designed to applyto the role of a feder al judg e und er 28 U.S .C. § 2 255 . In fac t, Rule 4(a) of

the Rules Governi ng § 2255 Habeas Proceedi ngs for Unit ed State s Distri ct Courts direct s that a habeas petit ion “be pre sented pr omptlyto the judge of the dist

rict court who pres ided atth e mov ant ’s tria l a nd s entenc ed h im .

. . . ” In contr ast t o the posi tion of a federaljudge revi ewing a § 2255 petit ion, who is effecti velyreconsi dering his rul ings at

the trial, a federaljudge reviewing a

§ 2254 petit

ion cannot

recon sider th e actio ns tak en by a s tate judg e, eve n if s/h e had been the state judge. In his or

her new capacit

y, s/he would be revie wing the actions of9

We thus shall vaca te the Distri c t Court’s decisi on to deny Cle mmons’ habeas petit ion a s wel l as hi s peti tion for appo in tm ent of counsel 6 and w e w ill remand wit h inst

ructi ons that

the case be assigne d to a dif

ferent dist rict court j udge.

anoth er cou rt. The diffe rence is institution al rathe r than e thical. T here is no b asis to a pply the su perv isory rule enunciat ed here t o the § 2255 si tuati on.

6 Because we will vac ate and remand each of the District Cou rt’s decisio ns ba sed o n the p ossible appearance of bi as, we need not reach the meri ts of Clemmons’ argument that the Dist rict Court’s de nial of

his moti on for appoint

ment of counselwas defici ent for failure to i nclude a st atement of

reasons.