                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                                       FILED
                              ________________________                        .U .S. COURT OF APPEALS
                                                                                ELEVENTH CIRCUIT
                                                                                 DECEMBER 19, 2006
                                     No. 05-15242
                                                                                  THOMAS K. KAHN
                               ________________________                               CLERK

                     D. C. Docket No. 02-00910-CV-ORL-28-JGG

GARY LEE WHEELER,


                                                           Petitioner-Appellant,
       versus

JAMES MCDONOUGH,
CHARLIE CRIST,

                                                           Respondents-Appellees.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                (December 19, 2006)

Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.

PER CURIAM:

       After oral argument and a thorough review of the record, we conclude that


       *
        Honorable Pasco Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
the district court judge erred by failing to recuse himself from Appellant Gary Lee

Wheeler’s 28 U.S.C. § 2254 proceedings, where the judge also was the chief judge

of the state appellate court that affirmed, on direct appeal, the state convictions

now being challenged by Wheeler in his § 2254 petition. In doing so, we join the

other circuits which have held that 28 U.S.C. § 455(a) requires a district court

judge to recuse himself under similar circumstances. See Clemmons v. Wolfe, 377

F.3d 322 (3d Cir. 2004); Russell v. Lane, 890 F.2d 947 (7th Cir. 1989); Rice v.

McKenzie, 581 F.2d 1114 (4th Cir. 1978).

      Accordingly, we reverse the district court’s August 24, 2005 order denying

Wheeler’s motion to vacate, filed pursuant to Fed. R. Civ. P. 60(b)(6); vacate the

district court’s November 14, 2002 order dismissing Wheeler’s § 2254 petition;

order that Wheeler’s § 2254 petition be reinstated nunc pro tunc as of the date of

its original filing; and direct that Wheeler’s § 2254 petition be assigned to a

different district court judge who has not participated in the review of Wheeler’s

convictions at issue while serving in the state courts.

REVERSED, VACATED, AND REMANDED TO REINSTATE PETITION.




                                           2
