                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2004

Johnson v. Carroll
Precedential or Non-Precedential: Precedential

Docket No. 03-2101




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Johnson v. Carroll" (2004). 2004 Decisions. Paper 650.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/650


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                        PRECEDENTIAL      Counsel for Appellant

IN THE UNITED STATES COURT OF             Joseph M. Bernstein (Argued)
            APPEALS                       800 North King Street, Suite 302
     FOR THE THIRD CIRCUIT                Wilmington, DE 19801
          ____________
                                          Counsel for Appellee
             No. 03-2101                               ____________
            ____________
                                                 OPINION OF THE COURT
       RONALD N. JOHNSON                              ____________

                   v.                     ROSENN, Circuit Judge.

   THOMAS J. CARROLL, Warden;                     This appeal raises an interesting
     ATTORNEY GENERAL OF                  question under the recent enactment of the
    THE STATE OF DELAWARE                 Antiterrorism and Effective Death Penalty
                                          Act of 1996 (AEDPA) pertaining to the
              Thomas Carroll,             failure of a state judge to recuse himself
                  Appellant               because his impartiality might reasonably
            ____________                  be questioned. A grand jury in Delaware
                                          indicted Thomas Carroll for the theft of
 Appeal from the United States District   property valued in excess of $1000,
                 Court                    possession of a deadly weapon by a person
     For the District of Delaware         prohibited, and several other related
        D.C. No.: 02-cv-00562             crimes. After a trial to a jury, he was
  District Judge: Honorable Joseph J.     convicted of the weapon charge and the
        Farnan, Jr., Chief Judge          lesser included charge of aggravated
             ____________                 menacing. He was acquitted of all other
                                          charges. He was sentenced to eighteen
      (Argued: February 24, 2004)         years imprisonment as a habitual offender.
                                          The State Supreme Court affirmed his
   Before: RENDELL, BARRY and             conviction and sentence. Johnson v. State,
      ROSENN, Circuit Judges              797 A.2d 1206 (table), 2002 WL 714520
                                          (Del. April 22, 2002).
         (Filed May 24, 2004)
                                                 Without filing any post-conviction
Thomas E. Brown (Argued)                  motion in the state court, Johnson filed a
Office of Attorney General of Delaware    petition for a writ of habeas corpus in the
Department of Justice                     United States District Court for the District
820 North French Street
Wilmington, DE 19801
of Delaware under 28 U.S.C. § 2254(d). 1             prosecutor, at a social function at Liguori’s
The District Court conditionally granted             home. “As you both know Jim Liguori, if
Carroll’s petition for habeas relief as to his       you see him, he talks about cases all the
sentence, concluding that there existed an           time.” The judge informed counsel that
appearance of bias on the part of the                Liguori made a comment about Johnson
sentencing judge. Johnson v. Carroll, 250            during their conversation. As related by
F. Supp.2d 395 (D. Del. 2003). The                   the judge, Liguori commented that
District Court ordered the State to grant            Johnson was a “bad guy,” that he had
Johnson a new sentencing hearing. The                “threatened” Liguori and his family, and
State timely appealed. In light of the               that Liguori “wanted to see that justice was
stringent provisions of AEDPA, we                    done.” The judge assured counsel that he
reverse and direct the District Court to             believed that Liguori’s comment would
dismiss Johnson’s habeas petition.                   not have any impact on his view of the
                                                     case or his pending sentencing decision.
                     I.
                     A.                                      Defense counsel at the time, Sandra
                                                     Dean, a public defender, who had become
        The relevant facts regarding                 Johnson’s trial counsel mid-way through
Johnson’s conviction and sentence are                trial, voluntarily informed the judge of the
undisputed. The charges set forth in the             background inform ation re gard ing
indictment stemmed from the alleged                  Johnson’s alleged threat to Liguori
kidnaping of his estranged sixteen-year-old          eighteen years before, in 1981. Liguori,
daughter, Karen Vincent, on October 6,               then a state prosecutor, prosecuted
1997.                                                Johnson in an unrelated matter. Johnson,
        Immediately before sentencing                having been convicted and imprisoned,
Johnson following his conviction, the state          sent a Christmas card to Liguori in 1981.
court trial judge held a conference with             The Christmas card read: “You had fun in
both the prosecutor and defense counsel in           ’81 and will be free in ’83.” Johnson
his chambers. The judge voluntarily                  escaped from prison, and it was debated
disclosed that he “had an out-of-court               then whether he posed a threat,
conversation” with James Liguori, a                  presumably to Liguori and his family. The
Delaware attorney and former state                   judge told Dean that he had no knowledge
                                                     of the background information that she had
                                                     just related and commented that it perhaps
  1                                                  explained why Liguori made the comments
    The respondent-appellants are
                                                     about Johnson.
Thomas Carroll, warden of the state
prison where Johnson is jailed, and the
                                                           Dean then informed the judge that
Attorney General of the State of
                                                     the local newspapers had reported the
Delaware. To simplify reference, we
                                                     purported threat at that time and that the
refer to them as the State of Delaware.

                                                 2
Public Defender’s Office had included the         would request a different judge for the
newspaper clippings among the documents           pending sentencing. The judge concluded
submitted to the court in relation to             the conference by stating that he would not
Johnson’s present trial. Dean assured the         allow Liguori to be a witness at Johnson’s
judge that Johnson’s 1981 Christmas card          sentencing hearing.
was part of “public record.” The judge
and Dean both agreed that the purported                               B.
threat was well documented and that the
documents were all in the “whole file”                    Johnson obtained new counsel and
earlier submitted to the court.                   appealed his conviction and sentence. As
                                                  to Johnson’s sentence, the Delaware
        The state prosecutor, Robert              Supreme Court rejected his claim that the
O’Neill, in turn mentioned his own                trial judge had erroneously failed to recuse
“recollection” of Johnson’s purported             himself sua sponte. The court analyzed the
threat to Liguori and his family. He then         issue first under the Delaware Judges’
told the judge that Liguori’s comment             Code of Judicial Conduct and found the
about Johnson’s character was relevant to         situation was not one of those enumerated
the court in meting out the sentence to him       in the Code that would mandate recusal.
because he was charged as a “habitual             Johnson v. State, 2002 WL 714520, at *3.
offender” under state law. He informed            The court analyzed the issue then under a
the judge further that the court should           two-prong test set forth under its prior
consider Johnson’s propensity for violence        decisions. Id. (citing Stevenson v. State,
and his entire criminal history in                782 A.2d 249, 255 (Del. 2001); Los v.
determining the term of sentence. He also         Los, 595 A.2d 381, 384 (Del. 1991)).
told the judge that Liguori arguably could        Under the subjective prong, the court
be presented as a witness at Johnson’s            noted the trial judge’s statement that “I
sentencing hearing.                               don’t view [the contact] to have any
                                                  impact on my view of the case or my
        Finally, in response to O’Neill’s         decision with regard to sentencing,” and
question as to whether she intended to file       found it sufficient. Under the objective
any motion regarding the ex parte                 prong, the court did not find any
communication disclosed by the judge,             “appearance of bias sufficient to cause
Dean told the judge she had no such               doubt as to the judge’s impartiality.”
intention because the alleged incident was        Specifically, the court observed that the
“nothing new,” “a matter of record,”              “[trial] judge did not engage in any active
“happened a long time ago,” and the judge         conduct demonstrating the appearance of
had indicated that he would not give it           impropriety.”      Id. (emphasis added)
“any undue weight.” Dean told the judge           (distinguishing this case from Stevenson,
also that she would discuss the matter with       782 A.2d at 251, 257 n.3 (finding
Johnson and expressed doubt that he               appearance of impropriety when a judge

                                              3
who had previous contact with a victim              standard of review is a question of law
affirmatively requested that the case be            subject to review by this Court de novo.
assigned to him)). The court observed               Chadwick v. Janecka, 312 F.3d 597, 605
additionally that Johnson’s previous                n.6 (3d Cir. 2002).
counsel at trial admitted, and his new
counsel on appeal did not deny, that the                              A.
record in his case available to the trial                  AEDPA severely circumscribes a
court had already contained a more                  federal habeas court’s review of a state
detailed account of his alleged threat to           court decision.   AEDPA provides in
Liguori. Id.                                        relevant part:

        The District Court issued an order          An application for a writ of habeas corpus
and opinion ruling against Johnson as to            on behalf of a person in custody pursuant
his conviction but in favor of him as to his        to the judgment of a State court shall not
sentence. Johnson v. Carroll, 250 F.                be granted with respect to any claim that
Supp.2d at 398. Specifically, the court             was adjudicated on the merits in State
agreed with Johnson that the trial court            court proceedings unless the adjudication
judge erroneously failed to recuse himself          of the claim—
sua sponte from sentencing Johnson                  (1) resulted in a decision that was contrary
following his voluntary disclosure that he          to, or involved an unreasonable application
had received an out-of-court ex parte               of, clearly established Federal law, as
communication from a former prosecutor              determined by the Supreme Court of the
regarding Johnson. The court agreed that            United States; or
the failure to do so created an appearance          (2) resulted in a decision that was based on
of bias on the part of the judge in violation       an unreasonable determination of the facts
of Johnson’s due process rights under the           in light of the evidence presented in the
United States Constitution.                         State court proceeding.

                       II.                          28 U.S.C. § 2254(d) (emphasis added).
         It is not disputed that Johnson had        The determination of what constitutes
exhausted his state remedy prior to his             “clearly established federal law” is a
initiation of the underlying federal habeas         “threshold question in § 2254 cases.”
action. It is also not disputed that AEDPA          Lockyer v. Andrade, 538 U.S. 63, 71
governs a federal court’s review of                 (2003).
Johnson’s habeas action. The District
Court had subject matter jurisdiction under                The statutory phrase “clearly
28 U.S.C. § 2254. We have appellate                 established” is defined as follows:
jurisdiction under 28 U.S.C. §§ 1291 and            Section 2254(d)(1)’s “clearly established”
2253. The question of whether the District          phrase refers to the holdings, as opposed to
Court appropriately applied the AEDPA               the dicta, of [the Supreme] Court’s

                                                4
decisions as of the time of the relevant                    clause requires the state court
state-court decision. . . . In other words,                 decision to be more than incorrect
“clearly established Federal law” under §                   or erroneous. The state court’s
2254(d)(1) is the governing legal principle                 application of clearly established
or principles set forth by the Supreme                      l a w m u s t b e o b j e c t i v e ly
Court at the time the state court renders its               unreasonable. . . . It is not enough
decision.                                                   that a federal habeas court, in its
                                                            independent review of the legal
Id. at 71-72 (citations omitted) (emphasis                  question, is left with a “firm
added) (internal quotation marks omitted).                  conviction” that the state court was
                                                            “erroneous.” [The Supreme Court
        The statutory phrase “contrary to”                  has] held precisely the opposite:
is defined as follows:                                      Under       §    2254 (d)(1)’s
        [A] state court decision is contrary                “unreasonable application” clause,
        to [the Supreme Court’s] clearly                    then, a federal habeas court may
        established precedent if the state                  not issue the writ simply because
        court applies a rule that contradicts               that court concludes in its
        the governing law set forth in [the                 independent judgment that the
        Supreme Court’s] cases or if the                    relevant state-co urt dec ision
        state court confronts a set of facts                applied clearly established federal
        that      are       materially                      law erroneously or incorrectly.
        indistinguishable from a decision                   Rather, that application must be
        of [the] Court and nevertheless                     objectively unreasonable.
        arrives at a result different from
        [the Court’s] precedent.                     Id. at 75-76 (citations omitted) (emphases
                                                     added) (internal quotation marks omitted).
Id. at 73 (internal quotation marks
omitted).                                                                  B.
                                                             The District Court acknowledged
        The statutory phrase “unreasonable           that it was bound by AEDPA’s stringent
application” is defined as follows:                  standard in reviewing the merits of
        [U]nder the “unreasonable                    Johnson’s habeas claims.         The court
        application” clause, a federal               agreed with Johnson that the Delaware
        habeas court may grant the writ if           Supreme Court’s decision was “contrary to
        the state court identifies the correct       or an unreasonable application of federal
        governing legal principle from [the          law and an unreasonable application of the
        Supreme] Court’s decisions but               facts in light of the evidence.” Johnson v.
        unreasonably applies that principle          Carroll, 250 F. Supp. 2d at 403.
        to the facts of the prisoner’s case.
        The “unreasonable application”                      The District Court and Johnson

                                                 5
relied on three United States Supreme                     the judge, it did not consider the
Court decisions, In re Murchison, 349 U.S.                reaction of the reasonable observer
133 (1955), Liljeberg v. Health Services                  and the related risks of injustice to
Acquisition Corp., 486 U.S. 847 (1988),                   the parties and undermining the
and Liteky v. United States, 510 U.S. 540                 public’s confidence in the judicial
(1994). 2 The Court agreed with Johnson                   process that result from the
that the trial judge’s failure to recuse                  continued participation of a judge
himself sua sponte gave rise to an                        in a proceeding despite the judge’s
appearance of bias and that the appearance                appearance of bias. See Stevenson
of bias violated his due process rights.                  [v. State], 782 A.2d [249, 258 (Del.
The Court wrote:                                          2001) (en banc)]. Thus, the Court
                                                          concludes that the Delaware
       In this case, it appears to the Court              Supreme Court decision was not
       that the Delaware Supreme Court                    entirely consistent with federal law
       limited its analysis to the active                 and was not a reasonable
       conduct of the trial judge, an                     application of the facts in light of
       analysis which is inconsistent with                the evidence.
       the concept of an appearance of
       bias. In addition, the Court did not        Johnson v. Carroll, 250 F. Supp. 2d at 404
       consider the impact of Liguori’s            (emphases added).
       comments that “he wanted to see
       that justice was done.” In these                                C.
       circumstances, Liguori’s ex parte                  Johnson has not asserted, and there
       “sentencing recommendation”                 is no evidence, that the trial judge
       could well create a situation in            harbored any actual bias toward him. He
       which a reasonable observer would           argued, and the District Court agreed, that
       q u estion the trial j u d g e ’s           the ex parte communication created an
       im pa rtia lity.      Because th e          appearance of bias and that the appearance
       Delaware Supreme Court limited              of bias violated his due process rights
       its analysis to the active conduct of       under the United States Constitution.

                                                           Under the plain language of §
  2                                                2254(d), as well as the United States
    The District Court also relied on
                                                   Supreme Court’s case law, we are
Stevenson v. State, 782 A.2d 249 (Del.
                                                   presented only with one narrow issue:
2001), to support its conclusion.
                                                   whether the Supreme Court has ever held
Because § 2254(d)(1) expressly limits
                                                   in any of its decisions existing at the time
federal law jurisprudence to decisions by
                                                   of the District Court’s judgment, including
the United States Supreme Court, the
                                                   the three cases relied on by Johnson and
state court case will be disregarded in our
                                                   the District Court, that an appearance of
review.

                                               6
bias on the part of a state court judge,                     the facts,” as expressed by the District
without more, violates the Due Process                       Court.     The state court adjudicated
Clause of the United States Constitution.                    Johnson’s appeal of his sentence under the
We are not, and cannot be, concerned with                    Delaware Judges’ Code of Judicial
the issues of whether the trial judge should                 Conduct and its own case law regarding
have recused himself sua sponte or                           the recusal standard for Delaware judges.
whether the ex parte communication at
issue was sufficient to constitute an                                As conceded by the District Court
appearance of bias. We assume that there                     in its later decision to grant the state’s
was an appearance of bias.                                   motion for an enlargement of the stay of its
                                                             judgment pending the resolution of this
            We note first that the District Court            appeal, its earlier decision granting habeas
has significantly changed the statutory                      relief “was based on an analogy to
language of § 2254(d) in its presentation                    Supreme Court cases related to the issue of
of the issue before it. The phrase “clearly                  recusal under 28 U.S.C. § 455 [for federal
established” was noticeably absent in the                    judges] and not on direct precedent related
court’s presentation of the § 2254(d)(1)                     to the trial judge’s appearance of bias
prong, and the court substituted the                         under the Due Process Clause.” Johnson
s t a tu t o r y p h r a s e “ u n r e a s o n a b l e       v. Carroll, No. 02-562 - JJF, 2003 WL
determination of the facts in light of the                   22136302 at *1 (D.Del. Sept. 10, 2003).
evidence” with the phrase “unreasonable                      (emphases adde d.)           Th is belate d
application of the facts in light of the                     realization was tantamount to an admission
evidence” in its presentation of the §                       that none of the Supreme Court decisions
2254(d)(2) prong. See Johnson v. Carroll,                    relied on by the District Court in its earlier
250 F. Supp. 2d at 404. Because the                          decision “clearly established” that mere
AEDPA standard is strict, the Court’s                        appearance of bias, without more, violates
omission and deviation were erroneous                        the Due Process Clause. Our own reading
and distorted its analysis.                                  of the cases shows that they do not stand
                                                             for any such holding, and we are not aware
        We note also that despite its                        of any other Supreme Court decision that
presentation of the § 2254(d)(2) prong, the                  has so held.
District Court did not analyze the
Delaware Supreme Court’s decision under                             The Supreme Court held in In re
that prong. The reason is obvious: the                       Murchison, 349 U.S. 133 (1955), that it
decision of the state appellate court did                    was unconstitutional for the same state
not, and could not, involve any                              judge, after a full hearing in open court, to
“determination of facts” regarding the                       punish contempt, previously committed
undisputed ex parte communication at                         before him while acting as a one-man
issue. Nor did the state court’s decision                    “judge-grand jury” permitted under then
involve any “unreasonable application of                     Michigan laws. “It would be very strange

                                                         7
if our system of law permitted a judge to          adjudicate a case where he has an interest
act as grand jury and then try the very            in the outcome, does not stand for the
persons accused as a result of his                 conclusion, drawn by the District Court
investigations.” 349 U.S. at 137. The              and Johnson, that a judge with an
Court concluded that “no man can be a              appearance of bias, without more, is
judge in his own case and no man is                required to recuse himself sua sponte
permitted to try cases where he has an             under the Due Process Clause. Johnson
interest in the outcome.” Id. at 136. That         has not alleged, and there is no evidence,
conclusion was based on “the basic                 that the trial judge here had a personal
requirement of due process” that the               interest in the outcome of the sentence.
defendant receive “[a] fair trial in a fair
tribunal.” Id. The Court commented that                   The Supreme Court held in Liteky
although fairness certainly required “an           v. United States, 510 U.S. 540 (1994), that
absence of actual bias,” “our system of law        recusal under 28 U.S.C. § 455(a) was
has always endeavored to prevent even the          subject to the limitation known as the
probability of unfairness.” Id. The Court          “extrajudicial source” doctrine or factor.
acknowledged that its “stringent rule may          That statute requires a federal judge to
sometimes bar trial by judges who have no          “disqualify himself in any proceeding in
actual bias and who would do their very            which his impartiality might reasonably be
best to weigh the scales of justice equally        questioned.”     Specifically, the Court
between contending parties.”             Id.       concluded that apart from surrounding
However, “to perform its high function in          comments or accompanying opinion,
the best way justice must satisfy the              evidencing such “deep-seated favoritism
appearance of justice.” Id. (internal              or antagonism” as would make fair
quotation marks omitted).                          judgment impossible, judicial rulings alone
                                                   “cannot possibly show reliance upon an
        The District Court and Johnson             extrajudicial source.” Id. at 555. In
relied on the above language to support            addition, opinions formed by the judge on
their conclusion that an appearance of bias        the basis of facts introduced or events
violated the Due Process Clause. In re             occurring during current or p rior
Murchison does not stand for that broad            proceedings are not grounds for a recusal
conclusion.     Instead, its holding, as           motion unless they display a similar degree
opposed to dicta, is confined to the basic         of favoritism or antagonism. Id.
constitutional principle of prohibiting a
judge from adjudicating a case where he                   The Liteky holding is limited to the
was also an investigator for the                   interpretation of the recusal standard under
government. The rest of the language               § 455(a) for federal judges. Facially, it
quoted in the preceding paragraph merely           does not stand for the conclusion, drawn
explains the holding. Even a generalized           by the District Court and Johnson, that
reading of the holding, that a judge cannot        appearance of bias alone on the part of a

                                               8
state judge makes that judge’s decision            that the university had just approved
subject to federal habeas review under §           reopening negotiations with the defendant.
2254(d)(1). To the extent that the holding
is relevant, it undercuts, rather than                     Following two days of trial, the
supports, Johnson’s claim. Johnson has             judge immediately announced his intention
not alleged, and there is no evidence, that        to rule for the defendant. After the trial,
the trial judge harbored any deep-seated           but before issuing the verdict, the judge
antagonism toward him. It is not disputed          did not attend a university board meeting,
that Johnson’s alleged threat to Liguori           which discussed the terms of a sale
was documented in the records available to         agreement with the defendant.         The
the trial judge prior to the sentencing.           proposed agreement provided that the
Under Liteky, an opinion formed by a               agreement would be void if the defendant
federal judge, which the judge here was            failed to retain the disputed ownership of
not, on the basis of facts introduced at           the corporation. The judge did not read
trial, would not be grounds for a recusal          the minutes of that meeting until he had
motion, even had one been filed by                 rendered judgment for the defendant.
Johnson.
                                                          Under the circumstances of that
        Similarly, the Supreme Court’s             case, the Supreme Court concluded that
holding in Liljeberg v. Health Services            the judge’s participation in the case
Acquisition Corp., 486 U.S. 847 (1988), is         created a strong appearance of impropriety
limited to an interpretation of the recusal        and plainly violated § 455(a), even if he
standard for federal judges under § 455(a),        lacked actual knowledge of th e
as it related to the specific facts of the         university’s interest in the outcome of the
case.    In that case, a federal judge             dispute involving the defendant. Id. at
conducted a bench trial involving a dispute        859. Specifically, the Court held that the
over the ownership of a corporation                purpose of the statute, to promote public
formed by the defendant in that action for         confidence in the integrity of the judicial
the purpose of constructing and operating          process, did not depend on whether the
a hospital. The judge issued a verdict in          judge actually knew of the facts creating
favor of the defendant. The judge had              an appearance of impropriety, so long as
been a member of the board of a university         the public might reasonably believe that he
and regularly attended its meetings. At the        knew.3     Id. at 859-60.       The Court
time of the trial involving the defendant,
the judge knew that the defendant had
negotiated extensively with the university           3
                                                      The Court pointed to four facts that
regarding the purchase of a piece of real
                                                   might cause an objective observer to
estate property owned by the university for
                                                   question the judge’s impartiality and
the construction of the proposed hospital.
                                                   justify the Court’s decision to affirm the
The judge also knew at the time of the trial
                                                   vacating of the judgment in favor of the

                                               9
                                                   concluded that the facts of that case
                                                   warranted the application of § 455(a)
                                                   because the violation was “neither
defendant under Federal Rule of Civil
                                                   insubstantial nor excusable.” Id. at 867.
Procedure 60(b)(6). First, in view of the
                                                   Although the judge did not know of his
financial importance of the defendant’s
                                                   “fiduciary interest in the litigation, he
project to the university, it was
                                                   certainly should have known.” Id. at 867-
“remarkable” that the judge, who had
                                                   68.
regularly attended the meetings for the
university board for a decade,
                                                           It is obvious that the Liljeberg
“completely forgot” about the
                                                   Court’s holding is limited to an
university’s interest in having a hospital
                                                   interpretation of §455(a) governing recusal
constructed on its property. Id. at 865.
                                                   of federal judges and based on the specific
Second, it was an “unfortunate
                                                   facts of that case, where the judge’s
coincidence” that although the judge had
                                                   putative fiduciary interest in the outcome
regularly attended the university board’s
                                                   of the litigation, as being a member of the
meetings, he did not attend that particular
                                                   university board, conflicted with his
post-trial meeting that discussed and
                                                   judicial obligation to be free of actual and
approved the terms of the sale agreement
                                                   perceived impartiality. Even though the
with the defendant. The minutes of that
                                                   Court mentioned that the concern for the
meeting were mailed to the judge four
                                                   integrity of judges had “constitutional
days before he issued judgment; if he had
                                                   dimensions,” id. at 865 n.12 (citing Aetna
opened the envelope upon receipt, he
                                                   Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
would have been under a duty to recuse
                                                   (1986) (citing Murchison, 349 U.S. at
himself before he rendered judgment. Id.
                                                   136)), its holding was not based on the
at 866. Third, it was “remarkable,” and
                                                   Due Process Clause. Liljeberg neither
“quite inexcusable,” that the judge failed
                                                   holds nor suggests that an appearance of
to recuse himself after he had finally read
                                                   bias on the part of a federal judge, without
the minutes. “A full disclosure at that
                                                   more, violates the Due Process Clause.
time would have completely removed
any basis for questioning the judge’s
                                                          In contrast to the federal judge in
impartiality and would have made it
possible for a different judge to decide
whether the interests—and
appearance—of justice would have been              vacate, the judge still did not
served by a retrial.” Id. By his silence,          acknowledge that he had known about
the judge deprived the plaintiff of a basis        the university’s interest both shortly
for making a timely motion for a new               before and shortly after the trial. Nor did
trial and also deprived it of an issue on          he indicate an awareness of a duty to
direct appeal. Id. at 867. Finally, when           recuse himself after he had read the
the plaintiff’s counsel filed its motion to        minutes. Id.

                                              10
Liljeberg, the state trial judge here               constitutional grounds under 28 U.S.C. §
voluntarily disclosed the ex parte                  2255 (regarding collateral review of a
communication that he had received from             federal sentence) unless “an appearance of
a non-party prior to sentencing Johnson,            impropriety . . . rose to the level of
providing him with a basis for making a             fundamental defect resulting in a complete
timely motion for recusal. In contrast to           miscarriage of justice.”      Id. (internal
Liljeberg, this case is devoid of any               quotation marks omitted).
evidence showing a potential conflict of
interest involving fiduciary or pecuniary                   The Seventh Circuit in Del Vecchio
interest.                                           v. Illinois Dept. of Corrections, 31 F.3d
                                                    1363 (7th Cir. 1994) (en banc), expressly
        In conclusion, none of the Supreme          rejected the view that an appearance of
Court cases relied on by the District Court,        bias amounted to a due process violation.
and we are aware of none, has held or               The court acknowledged that “the due
clearly established that an appearance of           process clause sometimes requires a judge
bias on the part of a judge, without more,          to recuse himself without a showing of
violates the Due Process Clause. Because            actual bias, where a sufficient motive to be
the position taken by the District Court is         biased exists.” Id. at 1371 (citing Tumey
not supported by any United States                  v. Ohio, 273 U.S. 510, 532 (1927); In re
Supreme Court case law to date, the                 Murchison, 349 U.S. 133, 136 (1955);
District Court’s grant of habeas relief is          Aetna Life Ins. Co. v. Lavoie, 475 U.S.
reversible error under AEDPA.                       813, 825 (1986)). “Despite the Supreme
                                                    Court’s broad pronouncements about ‘the
                    D.                              appearance of justice,’” the Del Vecchio
        Our sister Courts of Appeals have           court concluded that it “cannot answer the
rejected arguments similar to those made            due process question simply by concluding
by Johnson.        The Second Circuit               that it may have looked bad for [a state
concluded that § 455(a)’s “appearance of            trial judge] to preside at trial.” Del
impropriety standard” is not “mandated by           Vecchio, 31 F.3d at 1371.
the Due Process Clause.” Hardy v. United
States, 878 F.2d 94, 97 (2d Cir. 1989).                    The court specifically rejected the
The Fifth Circuit observed that “section            view that “th e Supre me C ourt’s
455 and the Due Process Clause are not              ‘appearance of justice’ language from
coterminous.” United States v. Couch,               Murchison and Aetna as holding that the
896 F.2d 78, 81 (5th Cir. 1990).                    due process clause requires judges to
“[C]onduct violative of section 455 may             recuse themselves based solely on
not [necessarily] constitute a due process          appearances.” Id. The court concluded, as
deficiency.” Id. (citations omitted). The           do we, that those Supreme Court decisions
Couch court held that a federal sentence            “present no such holding. . . .” Id. The
was not open to collateral review on                court observed further:

                                               11
The Supreme Court has never rested the              agree with the conclusions of our sister
vaunted principle of due process on                 Courts of Appeals.
something as subjective and transitory as
appearance. Instead, the Supreme Court                                   III.
simply uses the “appearance of justice”                     Because the Supreme Court’s case
language to make the point that judges              law has not held, not even in dicta, let
sometimes must recuse themselves when               alone “clearly established,” that the mere
they face possible temptations to be                appearance of bias on the part of a state
biased, even when they exhibit no actual            trial judge, without more, violates the Due
bias against a party or a cause.                    Process Clause, the District Court’s
                                                    judgment based on that erroneous view
          In short, bad appearances alone do        must be reversed under AEDPA. The case
not require disqualification. . . . When the        will be remanded to the District Court with
S u p r em e Co urt talks a bou t the               directions to dismiss Johnson’s petition for
“appearance of justice,” it is not saying           a writ of habeas corpus.
that bad appearances alone require
disqualification; rather, it is saying that
when a judge is faced with circumstances
that present “some [actual] incentive to
                                                    this question by presuming the honesty and
find one way or the other” or “a real
                                                    integrity of those serving as adjudicators.
possibility of bias,” a court need not
                                                    Disqualification is required only when the
examine whether the judge actually was
                                                    biasing influence is strong enough to
biased. . . . Absent the incentive for bias,
                                                    overcome that presumption, that is, when
however, disqualification is not required
                                                    the influence is so strong that we may
despite bad appearance.
                                                    presume actual bias. This occurs in
                                                    situations . . . in which experience teaches
Id. at 1371-72 (citations omitted). 4 We
                                                    that the possibility of actual bias is too
                                                    high to be constitutionally tolerable. A
                                                    court must be convinced that a particular
  4
    After an extensive survey of the                influence, under a realistic appraisal of
Supreme Court decisions involving                   psychological tendencies and human
disqualifications of judges, the Del                weakness, poses such a risk of actual bias
Vecchio court summarized the standard               or prejudgment that the practice must be
for disqualifications as follows:                   forbidden if the guarantee of due process
                                                    is to be adequately implemented.
The question is not whether some possible
temptation to be biased exists; instead, the
question is, when does a biasing influence          DelVecchio, 31 F.3d at 1375 (citations
require disqualification? Consistent with           omitted) (internal quotation marks
the common law, we begin in answering               omitted).

                                               12
