                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2008

Miller v. Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5489




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 05-5489
                                   ____________

                                  CORIE MILLER,

                                          Appellant,


                                           v.

                      ROY L. HENDRICKS, Warden;
          THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY,

                                          Appellees.

                                   ____________

                   On Appeal from the United States District Court
                          for the District of New Jersey
                                (D.C. No. 03-cv-02651)
                     District Judge: Honorable William J. Martini
                                     ____________

                              Argued April 9, 2008
             Before: SMITH, HARDIMAN and COWEN, Circuit Judges.

                               (Filed: June 12, 2008 )




Mary Gibbons (Argued)
600 Mule Road
Toms River, NJ 08757-0000
      Attorney for Appellant
Maura K. Tully (Argued)
Office of Attorney General of New Jersey
Division of Criminal Justice
P.O. Box 086
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625-0000
       Attorney for Appellees

                                       ____________

                                OPINION OF THE COURT
                                     ____________

HARDIMAN, Circuit Judge.

       Corie Miller appeals from an order of the United States District Court for the

District of New Jersey dismissing his petition for a writ of habeas corpus. Miller argues

that the District Judge — the Honorable William J. Martini — should have recused

himself because of a 1995 statement made by Judge Martini on the floor of the United

States House of Representatives while he was serving as a Congressman. We will affirm.

                                              I.

       As we write for the parties, we will recount only those facts essential to our

decision.

       A jury in New Jersey state court convicted Miller of murdering Cindy Villalba, a

college student who was shot and killed during an attempted armed robbery. After

exhausting his appeals in the state courts, Miller filed a petition for writ of habeas corpus

with the District Court in June 2003, alleging various trial errors, as well as ineffective



                                              2
assistance of counsel. Following full briefing, but before the District Court issued its

decision, Miller discovered the following July 25, 1995 floor statement by then-

Congressman Martini:

       Mr. Speaker, I rise today to address the House of Representatives with
       regard to a tragedy that has become far too common in this day and age. I
       am referring to the acts of senseless violence committed against our
       children that tear at the fabric of our society. On a street in Paterson, NJ, a
       town in my congressional district, a young woman’s dream to become a
       Wall Street entrepreneur or a scholar was shattered on Friday. She was
       attacked by unknown assailants who had approached her and demanded
       money. When the young woman told her attackers that she had no money
       one of them fired shots through the driver’s side window. She was struck
       by the barrage of bullets; her best friend and community were left in tears,
       by her side.

       Congressman Martini proceeded to identify the young woman as Villalba, and

described her various academic achievements and community service activities. He then

urged Congress and the nation to “summon the strength to dedicate ourselves to ending

crime,” extended his condolences to the Villalba family, and concluded, “[i]t is a shame

when a woman with such a bright future is taken from this world in such a senseless

manner. She will be missed by everyone whose heart she touched and whose life she

brightened.”

       Miller claims to have consulted with an attorney as soon as he discovered the

statement, and was advised to file a motion for recusal under 28 U.S.C. § 455. Before he

could do so, however, Judge Martini issued his opinion denying the writ. Miller neither

filed a motion for reconsideration nor requested Judge Martini to recuse himself. Instead,



                                              3
Miller raised the issue for the first time in his application for a certificate of appealability

from this Court, which we granted as to one issue: “whether Judge Martini should have

recused himself pursuant to 28 U.S.C. § 455(a) and § 455(b)(1) and (3).”

                                               II.

         Where, as here, a party did not seek recusal in the district court, we review for

plain error. See Selkridge v. United Omaha Life Ins. Co., 360 F.3d 155, 166-67 (3d Cir.

2004). Under the plain error standard, a district court’s order may be reversed only where

“[t]here [was] an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’” United

States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995) (alterations in original) (internal citation

omitted). Generally, to “affect substantial rights” an error “must have been prejudicial: It

must have affected the outcome of the district court proceedings.” United States v.

Olano, 507 U.S. 725, 734 (1993). A review of the record must reveal “egregious error or

a manifest miscarriage of justice.” United States v. Lore, 430 F.3d 190, 211 (3d Cir.

2005).

         Section 455(a) provides: “Any justice, judge, or magistrate judge of the United

States shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.” If a reasonable observer aware of all the circumstances

“would harbor doubts about the judge’s impartiality under the applicable standard, then

the judge must recuse.” In re Prudential Ins. Co. of Am. Sales Practice Litig. Agent

Actions, 148 F.3d 283, 343 (3d Cir. 1998) (internal quotations and citations omitted). In



                                               4
addition, § 455(b) sets forth a number of specific circumstances requiring recusal, two of

which are potentially relevant here. A judge shall recuse “[w]here he has a personal bias

or prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding,” 28 U.S.C. § 455(b)(1), or “[w]here he has served in

governmental employment and in such capacity participated as counsel, adviser or

material witness concerning the proceeding or expressed an opinion concerning the merits

of the particular case in controversy.” 28 U.S.C. § 455(b)(3). Generally, beliefs or

opinions requiring recusal “must involve an extrajudicial factor,” Antar, 53 F.3d at 574

(citation omitted), and opinions formed “on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible.” Liteky v. United

States, 510 U.S. 540, 555 (1994).

       In this case, Miller argues that the 1995 floor statement was based upon some

unknown source of “detailed extrajudicial information” available to then-Congressman

Martini. He points out that then-Congressman Martini appeared to be aware of specific

details of the crime and was able to relate information regarding the victim and her

achievements. He also asserts that the statement expresses sympathy for Villalba and her

family. Thus, Miller contends that the statement demonstrates the “personal knowledge

of disputed evidentiary facts” and the “personal bias or prejudice concerning a party” that



                                              5
requires recusal under § 455(b)(1). Miller also argues that the statement constituted “an

opinion concerning the merits of the particular case in controversy” made while serving

as a government official, making recusal mandatory under § 455(b)(3). Finally, Miller

asserts that the statement creates circumstances “in which his impartiality might

reasonably be questioned” under § 455(a).

       Even assuming for the sake of argument that Judge Martini’s failure to recuse sua

sponte was error, we are confident that it was not the “egregious error” or “manifest

miscarriage of justice” that is required under the plain error standard. Miller’s failure to

present the District Court with an opportunity to address the issue in the first instance

leaves a scant record on which to determine whether a reasonable observer, aware of all

the circumstances, might reasonably question Judge Martini’s impartiality. We are left to

speculate about Judge Martini’s recollection of the statement, the source of the

information contained in the statement, and whether he had any continuing interest or

involvement in the matter. Moreover, a review of the record does not lead ineluctably to

the conclusion that Judge Martini harbored a personal bias or prejudice against Miller.

Congressman Martini never mentioned Miller or even indicated he was aware that he had

been implicated in the crime, referring only to “unknown assailants.” Indeed, the floor

statement could simply be read as a general condemnation of violent crime that would not

warrant recusal. See United States v. Cooley, 1 F.3d 985, 994 n.4 (10th Cir. 1993)

(“[G]enerally stated views, even when expressed strongly, against a wide variety of



                                              6
conduct . . . are not unreasonable for a judge, and would not, absent more, disqualify a

judge from sitting on a case involving the same subject matter”). And it is just as

plausible that the information in the statement came not from some “detailed extrajudicial

source of information” available only to then-Congressman Martini, but from newspaper

accounts of the incident. See United States v. Bonds, 18 F.3d 1327, 1330 (6th Cir. 1994)

(recusal not required where judge “reads newspaper articles, magazines, or books that

may relate to a case that may come before him”). Accordingly, we find no egregious

error or manifest miscarriage of justice. Lore, 430 F.3d at 211.

       Even if Miller could satisfy the plain error standard, we would not reverse and

remand the case to a new district judge. The remedy for an erroneous denial of a recusal

motion is discretionary. Selkridge, 360 F.3d at 167. We must “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,” id. at 171 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,

864 (1988)), and will reverse and remand only where the error “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” Id. at 166 (quoting

Olano, 507 U.S. at 732).

       Here, reversing and remanding the case for assignment to a new judge would

impose a substantial burden on the parties and the District Court for what would be

merely an academic exercise. As counsel conceded at oral argument, Miller’s request for



                                                7
a certificate of appealability was denied on the merits. Accordingly, this Court has

already concluded that no reasonable jurist would find that the District Court erred in

denying Miller’s petition for writ of habeas corpus. See Slack v. McDaniel, 529 U.S. 473,

484 (2000) (certificate of appealability should issue only where “reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong”). We

will not ask a new district judge to consider the merits of a legal argument that we have

already concluded no reasonable jurist would accept.

       For all the foregoing reasons, we will affirm the judgment of the District Court.




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