     Case: 08-51300 Document: 00511297715 Page: 1 Date Filed: 11/18/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 18, 2010

                                       No. 08-51300                         Lyle W. Cayce
                                                                                 Clerk



WILLIAM ETHRIDGE HILL,

                                                   Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:07-CV-399


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Along with the parties and their respective counsel, the district judge who
decided this habeas case apparently overlooked the fact that he had been a
member of the three-judge panel of the Texas Court of Appeals, Third District,
that decided the petitioner’s direct appeal. Hill v. State, Nos. 03-01-00232-CR,
03-01-00233-CR, 2002 Tex. App. LEXIS 8534 (Tex. App.—Austin Dec. 5, 2002).

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 08-51300 Document: 00511297715 Page: 2 Date Filed: 11/18/2010



                                  No. 08-51300

The relevant federal statute 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). Such a
situation arises when a federal judge in a habeas case reviews the validity of a
decision in which he previously participated as a judge in state court. See
Clemmons v. Wolfe, 377 F.3d 322, 327 (3d Cir. 2004); Rice v. McKenzie, 581 F.2d
1114, 1118 (4th Cir. 1978). Although the statute also provides that this basis for
disqualification may be waived by the parties after “a full disclosure on the
record of the basis for disqualification,” 28 U.S.C. § 455(e), the Code of Conduct
for United States Judges provides that the conflict is not waivable if the judge
“has participated as a judge . . . [in] the proceeding or has expressed an opinion
concerning the merits of a particular case,” Administrative Office of U.S. Courts,
Code of Conduct for United States Judges Canon 3(C)(1)(e), 3(D) (2009).
Whether or not this basis for disqualification is waivable, based on our review
of the record no disclosure and waiver occurred in this case. Therefore, we are
required to vacate the judgment of the district court and to remand to the Chief
Judge of the District Court for the Western District of Texas for reassignment
under the rules of that court.
      VACATED and REMANDED.




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