                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-3736
ANTHONY GUEST,
                                           Petitioner-Appellant,
                                v.

TERRY MCCANN, Warden,
                                           Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
           No. 95 C 5034—William J. Hibbler, Judge.
                         ____________
ARGUED SEPTEMBER 11, 2006—DECIDED JANUARY 18, 2007
                  ____________


 Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. In this appeal, Anthony
Guest asks us to overturn his murder conviction because
of his contention that the trial judge was biased and
denied him a fair trial. After extensive discovery in the
district court, Guest was able to produce substantial
evidence indicating corruption on the part of the trial
judge. However, Guest has produced no evidence that the
judge’s corruption tainted his trial. For this reason, as
discussed in more detail below, we affirm the judgment
of the district court.
2                                               No. 04-3736

                   I. BACKGROUND
   In 1983, Anthony Guest was convicted of aggravated
battery, unlawful use of weapons, attempted murder, and
three counts of murder after a bench trial before Judge
Maurice Pompey in the Circuit Court of Cook County,
Illinois. At trial, two eyewitnesses testified against Guest.
One of the witnesses, Ferris King, was a security guard
at the Jewel grocery store where the crimes took place.
King testified that he approached Guest and identified
himself as a security guard after he observed Guest
shoplifting toothpaste. King asked Guest to come with him
to the Jewel store’s security office, which was in the
store’s basement. When they reached the security office,
Guest refused to be searched and pulled a gun out of his
pocket. King stated that Guest could keep the items and
began to walk towards the adjoining employee cafeteria,
with Guest following him. When the two men entered
the cafeteria, three other Jewel employees were already
sitting there—Joanne Bailey, Marlean Washington, and
Gary Henderson.
   After seeing Guest pointing a gun at King, Joanne Bailey
attempted to flee. Guest shot at her and missed. King then
fired a shot at Guest, but missed, and Guest responded by
shooting King in the shoulder. Guest then ran out of the
cafeteria and escaped. Later, the body of another Jewel
employee, John Geever, was found in the basement, dead
as a result of a gunshot wound. No witnesses saw Geever
being shot.
  Guest had entered the Jewel store with a friend named
John Marlow, who was not involved in the shootings.
Marlow did not leave the store after Guest fled the scene,
but remained and assisted the Chicago Police Department
by identifying Guest. The day after the shootings, all four
of the Jewel employees who had been in the cafeteria
identified Guest in a photo array. Guest remained a
No. 04-3736                                               3

fugitive for a year, but after he was apprehended, King
and Washington both identified him in a lineup.
  At the trial, both King and Bailey identified Guest as the
shooter, and the defense stipulated that the other two
Jewel employees would also identify Guest as the shooter.
The defense also stipulated Geever had not been killed
by a bullet from King’s gun.
  Judge Pompey sentenced Guest to death by electrocu-
tion. On appeal, the Illinois Supreme Court affirmed
Guest’s sentence, while vacating two of his murder convic-
tions that were legally duplicative. Guest unsuccessfully
petitioned the United States Supreme Court for a writ
of certiorari, and subsequently filed various state post-
conviction motions.
   In 1997, Guest filed a petition for habeas corpus in the
United States District Court for the Northern District of
Illinois, raising various claims related to his death sen-
tence and arguing that his right to a fair trial before
an impartial judge was infringed and that his trial coun-
sel was constitutionally ineffective. The district court
granted Guest extensive discovery on the issue of judicial
bias. Guest was allowed to depose Judge Pompey,
Pompey’s bailiff, Lucius Robinson, and Guest’s attorney
during his murder trial, Dennis Tobin. He received
transcripts from the trial of a corrupt Cook County
judge (Judge Thomas Maloney) and FBI investigation
materials related to an operation to uncover judicial
corruption known as “Operation Greylord.”
  Operation Greylord uncovered extensive corruption
in the Illinois courts, including bribes being paid to
multiple judges in exchange for dismissals. Guest’s
deposition of Robinson and other evidence uncovered
during habeas discovery indicated that Judge Pompey
had taken numerous bribes in exchange for favorable
rulings in criminal cases. Such was the finding of Judge
4                                              No. 04-3736

Hibbler below, who observed that “[e]ven though Judge
Pompey’s corruption was never exposed in a public trial,
Guest’s counsel has unearthed a considerable amount of
distressing evidence that casts serious doubt on Judge
Pompey’s integrity.”
  In 2002, then-Governor George Ryan granted Guest
clemency with regard to his execution, mooting the death
penalty-related claims in the original habeas petition.
Guest filed an amended habeas petition in 2003, asserting
only the ineffective assistance of counsel claim and the
judicial bias claim. The district court denied the petition
on March 24, 2004. Guest now appeals only the district
court’s judgment on the judicial bias claim.


                     II. ANALYSIS
A. Procedural Default and Exhaustion
  The respondent argues that Guest’s judicial bias claim
is procedurally barred as a result of his failure to present
it in state court. Under 28 U.S.C. § 2254, before a state
habeas petitioner is allowed to pursue his claims in fed-
eral court, he must exhaust his remedies in the state
courts. See O’Sullivan v. Boerckel, 526 U.S. 838, 842-46
(1999) (“state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established
appellate review process”). In Illinois, this means that a
petitioner must have directly appealed to the Illinois
Appellate Court and presented the claim in a petition for
leave to appeal to the Illinois Supreme Court. See id. If a
habeas petitioner has not exhausted a claim, and com-
plete exhaustion is no longer available, the claim is
procedurally defaulted. See id. at 848.
   Guest did not present his judicial bias claim to the
Illinois state courts and there is no longer time to do so.
No. 04-3736                                              5

This means that his claim is defaulted unless he can
demonstrate either cause for the default and prejudice or
that ignoring the default is necessary to prevent a funda-
mental miscarriage of justice. See Badelle v. Correll, 452
F.3d 648, 661 (7th Cir. 2006). The district court con-
cluded that Guest had demonstrated cause for the failure
because the details of Judge Pompey’s corruption did not
surface until Judge Maloney’s 1993 corruption trial, one
year after Guest filed his appeal to the Illinois Supreme
Court. The district court rejected the respondent’s argu-
ment, raised again here on appeal, that Guest was put
on notice by a newspaper article in 1983 that suggested
corruption on the part of Judge Pompey, a grand jury
subpoena of Judge Pompey’s records, and a statement
made in a television report linking Judge Pompey to
Operation Greylord.
  In order to demonstrate cause for failure to exhaust,
Guest must demonstrate that “some objective factor
external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” See McCleskey v.
Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier,
477 U.S. 478 (1986)). The Court in McCleskey identified
three types of “objective factors” that would constitute
sufficient cause: (1) “interference by officials that
makes compliance . . . impractical”; (2) constitutionally
ineffective assistance of counsel; and (3) “a showing that
the factual or legal basis for a claim was not reasonably
available to counsel.” Id. The third factor is applicable
here. The scattered news items and court filings identi-
fied by the respondent were insufficient to put Guest on
notice. We cannot say that the factual basis for a judicial
bias claim was “reasonably available” to counsel on the
basis of the items cited by the respondent. A prisoner is
not necessarily expected to be aware of even the most
obscure news stories which might expose the basis for a
claim of unconstitutional imprisonment. The district
6                                               No. 04-3736

court did not address the question of actual prejudice, and
we need not either since it is effectively subsumed by
Guest’s substantive claim. There is no harmless error in
a judicial bias case. See Bracy v. Schomig, 286 F.3d 406,
414 (7th Cir. 2002).
  However, the respondent also argues that Guest could
have returned to the state courts after the discovery of
new evidence under the Illinois Post-Conviction Hearing
Act, 725 ILCS 5/122-1 et seq. and advances this as a
secondary argument for procedural default. We need not
reach this argument because, as explained in detail be-
low, even under the more liberal standard of review
applicable where we address issues not adjudicated by
the state courts, it is clear that Guest’s judicial bias claim
fails on the merits.


B. Judicial Bias Claim
  In adjudicating section 2254 claims, we are generally
bound by the deference requirements of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Pursu-
ant to AEDPA, a state habeas petitioner can succeed if
he demonstrates that the state court judgment was
either contrary to or an unreasonable application of fed-
eral law. 28 U.S.C. § 2254(d)(1). However, for the reasons
discussed above, in this case there is no state court
decision on the merits of the issue at hand. We are thus
required to “dispose of the matter as law and justice
require.” See Harrison v. McBride, 428 F.3d 652, 665 (7th
Cir. 2006) (citing 28 U.S.C. § 2243). To qualify for a writ of
habeas corpus, Guest must demonstrate that “he is in
custody in violation of the Constitution or laws or treaties
of the United States.” See id. at 665 (quoting 28 U.S.C.
§ 2254).
  The Supreme Court has observed that “[a] fair trial in a
fair tribunal is a basic requirement of due process.” In re
No. 04-3736                                                  7

Murchison, 349 U.S. 133, 136 (1955); see also McBride, 428
F.3d at 667 (“Fairness of course requires an absence of
actual bias in the trial of cases . . .”). As we stated in
McBride, “due process is violated when a judge presides in
a case that ‘would offer a possible temptation to the
average man . . . to forget the burden of proof required
to convict the defendant’ or would ‘lead him not to hold
the balance nice, clear, and true between the state and
the accused.’ ” Id. (quoting Tumey v. State of Ohio, 273 U.S
510 (1927)).
  Guest alleges that Judge Pompey’s rulings were unduly
harsh, exhibiting bias; he specifically identifies Judge
Pompey’s actions: (1) “inducing Guest to waive his Sixth
Amendment right to a jury trial”; (2) “failing to determine
that Guest’s waiver was [not] knowing and voluntary”;
(3) “failing to declare a mistrial or, alternatively, a contin-
uance for a hearing to determine what happened to
possibly exculpatory evidence”; (4) “curtailing cross-
examination of a State witness on key testimony about the
timing and duration of critical events”; and (5) “return-
ing guilty verdicts on multiple counts of murder (and
refusing to provide specific findings of fact) notwithstand-
ing a weak case from the State and inexplicably missing
evidence.”
  The gravamen of Guest’s judicial bias claim is that as
Operation Greylord approached a climax and Judge
Pompey became aware of his possible indictment, he
sought to bolster his conviction statistics by exhibiting
bias against the defendants in certain of his cases in
which he had not accepted bribes. This “compensatory
bias” theory, which reaches deep into the very psyche of
Judge Pompey for its essential premise, depends on four
principal types of evidence uncovered by Guest during
his investigation: (1) testimony from Robinson (Judge
Pompey’s bailiff) that he passed bribes to Judge Pompey
on “hundreds” of occasions; (2) testimony from a former
8                                                  No. 04-3736

federal prosecutor involved in Operation Greylord that
Judge Pompey was involved in significant corruption; (3)
evidence from FBI files implicating Judge Pompey as
a bribe-taker; and (4) evidence from the U.S. Attorney’s
Office files implicating Judge Pompey. We need not
engage in an exhaustive discussion of this evidence. It is
clear from the record that, as Judge Hibbler found,
Judge Pompey was almost certainly involved in significant
bribe-taking and corruption during his time on the bench.1
The only major source of factual disagreement on this
point between the district court and Guest stems from the
district court’s conclusion that there was little evidence
of corruption around the time of Guest’s trial. Judge
Hibbler found that most of the evidence related to an
earlier period in Judge Pompey’s career—the time when
he was presiding over the Cook County preliminary
hearing courtroom. Guest argues that the evidence sug-
gests that Judge Pompey was engaged in bribe-taking
contemporaneously with his trial.
  The district court relied on our decision in Bracy v.
Schomig, 286 F.3d 406, 408 (7th Cir. 2002),2 in conclud-
ing that Guest’s evidence was insufficient to succeed on
his compensatory bias claim. In Bracy, this court, sitting
en banc, vacated the sentences but allowed the convic-


1
  Indeed, in Bracy v. Gramley, the United States Supreme
Court took note of the evidence against Judge Pompey that
surfaced in the investigation of Judge Maloney. 520 U.S. 899, 907
n. 7 (1997) (“The Government introduced evidence that Maloney
regularly bribed Judge Maurice Pompey and Cook County
Deputy Sheriff Lucius Robinson (who would later serve as
Maloney’s ‘bag man’)”).
2
  Bracy v. Schomig was decided on remand from the Supreme
Court, which reversed our earlier decision and found that the
petitioners were entitled to discovery on their bias claims. See
Bracy v. Gramley, 520 U.S. at 908-09.
No. 04-3736                                                     9

tions to stand of two individuals who were tried before
Judge Maloney. Unlike Judge Pompey, Judge Maloney
was actually convicted of taking bribes, and his convic-
tion was for activity that occurred contemporaneously
with the petitioners’ trials. The petitioners in Bracy
asserted the same type of compensatory bias theory
asserted here by Guest. Just as the district court con-
cluded with respect to Judge Pompey in the instant case,
we found in Bracy that “Maloney is not entitled to the
usual presumption that ordinarily informs judicial bias
cases—a presumption that public officials have ‘properly
discharged their official duties.’ ” Id. at 409 (quoting
United States v. Chem. Found., 272 U.S. 1, 15 (1926)).
Nevertheless, we concluded that “the fact that Maloney
was so exceedingly corrupt does not support a per se
finding that every case over which he presided was in-
fected.” Id. at 410. We observed that a petitioner pressing
a judicial bias claim must demonstrate that the judge was
“actually biased in petitioner’s own case.” Id. (quoting
Bracy v. Gramley, 520 U.S. at 909).3 In attempting to do
so, the petitioners in Bracy pointed out minor unfavorable
rulings on various evidentiary issues. We observed that
“[f]indings of this sort, which judges often make favoring
a law enforcement version of conflicting events, do not
support a claim of actual bias.” See id. at 415.
  Bracy dictates that Guest’s claims must fail. At both
ends of the case, Guest’s judicial bias claim is weaker than


3
  Judge Evans’s opinion for the court, sitting en banc, also noted
that there was substantial disagreement within the court on
several questions related to the meaning of this phrase (Judges
Posner and Rovner both filed opinions concurring in part and
dissenting in part, with five other judges joining these separate
opinions). Bracy v. Schomig, 286 F.3d at 409. However, none
of the disagreement referenced by Judge Evans’s opinion is
relevant to the resolution of this case.
10                                                No. 04-3736

that of the petitioners in Bracy. There was substantially
more evidence of corruption on the part of Judge Maloney
(contemporaneous corruption) than Judge Pompey, and
Guest has not introduced anything in the manner of a
suspicious evidentiary ruling pointing to “actual bias” in
his case. It is circular for Guest to argue that Judge
Pompey’s decision to return a guilty verdict is evidence of
bias, particularly when overwhelming evidence of his guilt
was admitted at the trial. This evidence included: (1) the
live testimony of King and Bailey that Guest was the
shooter in the basement; (2) the stipulated identifica-
tions of Guest by the other two Jewel employees; (3)
testimony that all four Jewel employees identified Guest
in a photo array the day after the shootings; and (4) the
stipulated firearm analysis indicating that security guard
King’s gun (the only other gun that was fired in the
basement) was not the source of the bullet that killed
Geever. At the conclusion of the trial, the prosecution had
certainly proved Guest’s guilty beyond a reasonable doubt.4
  Similarly, even assuming that Robinson induced Guest
to waive his right to a jury trial, Robinson’s actions would
not demonstrate bias on the part of Judge Pompey. Actions
that are inexplicable in the absence of a questionable
motive constitute circumstantial evidence of judicial bias.
But Robinson may have truly believed that Guest was
more likely to receive a favorable ruling from Judge
Pompey than from a jury. Even if he did not believe this,
his motivations tell us nothing about the bias of Judge
Pompey. Guest cannot point to any evidence in the
record supporting the theory that Robinson induced the


4
  We do not see any inherent evidence of bias in Judge Pompey’s
failure to make specific findings of fact with regard to Guest’s
guilt, particularly where, as here, the evidence was overwhelm-
ing. Guest’s brief fails to cite any authority indicating that
Judge Pompey flouted any Illinois procedural requirements.
No. 04-3736                                              11

jury waiver in order to make Guest a sacrificial lamb to
Judge Pompey’s alleged image-building campaign.
Relatedly, Guest has not demonstrated that Judge
Pompey should have recognized that his jury waiver was
involuntary.
   The potentially exculpatory “missing evidence” that
Guest alleges should have caused Judge Pompey to de-
clare a mistrial consists of a “missing bullet” from a
shooting spree Guest engaged in on the day of the murder.
The witnesses against Guest testified that he repeatedly
fired his gun haphazardly around the Jewel store that
was the scene of the crime. Guest argues that testimony
at his trial revealed that one of the bullets fell from the
security guard he shot while the guard was being treated,
and that someone, perhaps a police officer or a doctor,
picked it up. The bullet was never retrieved or produced
in discovery. Guest argues that we can glean that Judge
Pompey was biased from his failure to declare a mistrial.
But Guest has uncovered no evidence that the State was
ever in possession of the bullet. Moreover, even if the
bullet had been retrieved and lost by the State, it had
little or no evidentiary value. Scientific examination of
the slug would have yielded no information that could
contradict Ferris King’s testimony that he saw Guest
shoot the bullet into his body.
  Lastly, Guest points to a series of irrelevant questions
that his attorney attempted to ask one of the witnesses
that were not allowed by Judge Pompey. The questions
Guest identifies are all either irrelevant, inconsequential,
or exhibit improper form (e.g., “What did you have for
lunch on the day of the shooting?”). The failure to allow
them in no way demonstrates bias.
  At bottom, all of Guest’s allegations and evidence in
support thereof do not amount to a successful claim of
judicial bias. This case presents an argument almost
12                                            No. 04-3736

identical to that in our decision in Bracy, the distinction
being that Guest has an even weaker case. The Bracy
petitioners could not succeed in demonstrating bias
sufficient to overturn their convictions, and neither can
Guest.


                  III. CONCLUSION
 The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—1-18-07
