FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN ARTICE MILES,  No. 10-99016

Petitioner-Appellant, D.C. No.

v. 4:01-cv-00645-RRC  District of Arizona, CHARLES L. RYAN,

Tucson Respondent-Appellee.

ORDER 

Filed September 28, 2012

Before: Susan P. Graber, Circuit Judge.

Order;

Statement by Judges Berzon and Tallman

ORDER

Appellant’s motion for recusal is DENIED. 

BERZON, and TALLMAN, Circuit Judges:

Appellant’s motion to recuse Judge Graber was, in its format, directed to all three judges on the three-judge panel in

this case. Under this Circuit’s procedures, however, each

judge may decide for himself or herself whether recusal is

appropriate. See, e.g., Suever v. Connell, 681 F.3d 1064 (9th

Cir. 2012); Feminist Women’s Health Center v. Codispoti, 69

F.3d 399 (9th Cir. 1995); 28 U.S.C.A. § 455. We therefore

directed the motion to Judge Graber alone, who has denied

the recusal request.

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Should our silence be misunderstood, however, we wish to

state that were it appropriate for us to have participated in the

recusal decision, we would have voted to deny the motion.

Indeed, we regard the request itself as an inappropriate one.

The basis for the requested recusal was a tragedy in Judge

Graber’s life that occurred close to forty years ago, her

father’s murder and the subsequent prosecution of the perpetrator. The suggestion was that Judge Graber cannot fairly

decide this capital murder case because of that history and

some broad similarities between the two criminal cases.

Judge Graber has been a judge for almost twenty-five

years. In that time, she has sat on numerous capital murder

cases, voting to affirm some and to reverse others. She has

never been asked to recuse in any of them and never has.

There is absolutely no reason she should do so now. 

All of us as judges have had life experiences that could be

said to affect our perception of the cases that come before us.

Some of us have served as prosecutors and others have not;

some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary; some have children and

other relatives with disabilities and illnesses, physical and

mental, while others do not; some have had personal experience, directly or through family members, as crime victims,

while others have not; some have relatives who are police

officers, civil rights activists, or journalists, and others do not;

some served in the armed forces and others did not; some had

personal experiences as immigrants and others did not. These

life experiences do not disqualify us from serving as judges

on cases in which the issues or the facts are in some indirect

way related to our personal experiences. 

Here, the suggested basis for questioning Judge Graber’s

impartiality is especially flimsy, as the acts on which it is

based happened close to forty years ago. Judge Graber has

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had that much time to absorb her loss. And there can be no

rational suggestion that Judge Graber has anything at all to

gain by denying habeas relief in this capital case, which concerns a crime and a defendant with nothing to do with her

loss.

We addressed a somewhat similar issue in Perry v. Brown,

671 F.3d 1052 (9th Cir. 2012), when proponents of California’s Proposition 8 amendment banning same-sex marriage

sought to vacate the district court’s judgment on the ground

that Judge Vaughn Walker, the deciding judge, should have

recused himself because he was gay and was in a same-sex

relationship at the time he presided over the case. See Perry

v. Schwarzenegger, 790 F. Supp. 2d 1119, 1121 (N.D. Cal.

2011). According to the proponents, this fact created a situation in which Judge Walker’s “impartiality might reasonably

be questioned,” the same standard petitioner invokes here. See

id. at 1129; 28 U.S.C. § 455(a). Chief Judge Ware, to whom

the case was assigned following Judge Walker’s retirement,

denied the motion to vacate, explaining that “[i]n a case that

could affect the general public based on the circumstances or

characteristics of various members of that public, the fact that

a federal judge happens to share the same circumstances or

characteristic . . . is not a basis for disqualifying the judge.”

Id. at 1125. We affirmed. Perry v. Brown, 671 F.3d at 1095-

96.

This court’s standard for determining whether a judge’s

“impartiality might reasonably be questioned” is as follows:

[We] ask whether a reasonable person with knowledge of all the facts would conclude that the judge’s

impartiality might reasonably be questioned. . . . The

“reasonable person” is not someone who is hypersensitive or unduly suspicious, but rather is a wellinformed, thoughtful observer. The standard must

not be so broadly construed that it becomes, in

effect, presumptive, so that recusal is mandated upon

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the merest unsubstantiated suggestion of personal

bias or prejudice.

United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008)

(citations and internal quotation marks omitted). No “well

informed, thoughtful observer,” particularly one who has followed Judge Graber’s jurisprudence over the years, would

believe that Judge Graber’s tragic experience many years ago

would so color her otherwise exemplary sense of duty and

judgment as to render her biased or partial in the particular

case.

Further, the motion for recusal in this case is peculiarly

timed. This case has already been decided, with Judges Graber and Tallman voting to affirm the denial of habeas relief

in this death penalty case and Judge Berzon voting to reverse

the penalty but not the conviction. The case is currently pending on a petition for rehearing. Although new counsel was

substituted while the case was pending, there is no reason

why the information about Judge Graber recited in the recusal

motion, derived from a very simple Internet search, could not

have been found by the former lawyers or the new ones

before the opinion issued. Indeed, the motion states that the

general historical facts were known, but not the details. To

make the motion after the initial outcome of the case was

known renders it even more inappropriate than its content

alone would indicate — which, as we have said, is itself considerable.

We well understand that this is a death penalty case, and

that the petitioner’s lawyers properly regard it as their duty to

try appropriately to raise every colorable issue that could possibly redound to their client’s benefit. But asking for the

recusal of a member of this court who has decided capital

cases for over two decades because of something that happened well before she became a judge is a request lacking

even colorable merit. And doing so by reciting in detail the

facts of a long ago, tragic incident in her life, requiring her to

11862 MILES v. RYAN
relive them yet again and exposing them anew to public view

is, in our opinion, beyond the limits of appropriate representation.

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