                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               _____________

                                No. 11-2938
                               _____________

                           JOHNNY MARTINEZ,
                                          Appellant
                                  v.

               IVER STRIDIRON, ATTORNEY GENERAL
          PHILLIPS, IRA, WARDEN BUREAU OF CORRECTIONS
                           _____________

                       On Appeal from the District Court
                             of the Virgin Islands:
                               Appellate Division
                       District Court No. 1-05-cv-00052
               District Judge: The Honorable Curtis V. Gomez
                District Judge: The Honorable Juan R. Sanchez
           Superior Court Judge: The Honorable Michael C. Dunston

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             December 3, 2012

           Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

                         (Filed: September 06, 2013)
                          _____________________

                                OPINION
                          _____________________

SMITH, Circuit Judge.

     Johnny Martinez was convicted of second-degree murder and sentenced to
                                      1
thirty-five years‘ imprisonment. He subsequently filed a habeas petition under

Virgin Islands law, which the Superior Court denied. Martinez now appeals the

denial of his habeas petition, contending that due process required his sentencing

judge and habeas judge to recuse themselves and that the Virgin Islands sentencing

provision for second-degree murder is unconstitutionally vague. Because none of

his arguments have merit, we will affirm the denial of his habeas petition.

                                         I.

      In May 1997, Martinez shot and killed Ean Pemberton outside a Pueblo

supermarket on St. Croix in the Virgin Islands.1 The Government of the Virgin

Islands charged Martinez with first-degree murder in violation of 14 V.I. Code

§ 922(a)(1) and unauthorized possession of a firearm during commission of a

violent crime in violation of 14 V.I. Code § 2253(a). The case was filed in the

Superior Court of the Virgin Islands2 and assigned to Judge Edgar Ross, who

subsequently recused himself. As a result, then-Judge Maria M. Cabret (now a

justice on the Virgin Islands Supreme Court) was reassigned to Martinez‘s case.

Her courtroom bailiff, Iris Pemberton, was the victim‘s aunt.

      Several months later, Martinez entered into a plea agreement with the



1
  The parties have not provided any original documentation of the factual and
procedural background, but these events do not appear to be in dispute.
2
  At the time, the Superior Court was known as the Territorial Court of the Virgin
Islands. As of January 1, 2005, the name of the Territorial Court changed to the
                                         2
Government and entered an Alford plea3 to second-degree murder in violation of

14 V.I. Code § 923(b) and unauthorized possession of a firearm. In exchange, the

Government recommended consecutive sentences of thirty-five years for second-

degree murder and ten years for unauthorized possession of a firearm.

        Judge Cabret eventually adopted both of these recommendations, though the

thirty-five-year recommendation for second-degree murder took a more circuitous

path.     On that count, Judge Cabret initially sentenced Martinez to life

imprisonment—a sentence that the law did not authorize. See Ruiz v. United

States, 365 F.2d 500, 501 (3d Cir. 1966) (holding that the Virgin Islands

sentencing statute for second-degree murder, by setting a minimum sentence

without a maximum sentence, authorizes any sentence for a term of years above

the minimum but does not authorize life imprisonment). The Government alerted

Judge Cabret to this error, which she fixed by amending Martinez‘s life sentence to

seventy-five years‘ imprisonment. Martinez appealed to the Appellate Division of

the United States District Court for the Virgin Islands,4 claiming that his seventy-



Superior Court. See Act of Oct. 29, 2004, No. 6687, § 1 (2004). For consistency,
we refer to this court as the Superior Court throughout this opinion.
3
  See North Carolina v. Alford, 400 U.S. 25, 38 (1970) (holding that, when facing
strong evidence of guilt, a defendant may plead guilty while protesting innocence
to avoid going to trial).
4
  At the time, the Virgin Islands had not yet established a local appellate tribunal,
and appeals from the Superior Court went to a three-judge panel known as the
District Court of the Virgin Islands, Appellate Division. See Gov’t of the Virgin
                                         3
five-year sentence was unconstitutionally disproportionate to his crime.        The

Appellate Division affirmed his sentence on November 23, 1999. Back before

Judge Cabret in Superior Court, Martinez moved for a reduction of his sentence.

In February 2000, Judge Cabret granted that motion, reducing his seventy-five-

year sentence to thirty-five years—the Government‘s original recommendation.

      Martinez was still dissatisfied with his sentence.     In January 2003, he

petitioned the Superior Court for a writ of habeas corpus under 5 V.I. Code § 1303,

and the case was assigned to Judge Cabret, his sentencing judge. Martinez argued

that Judge Cabret should have recused herself from presiding over his criminal

case, that the Virgin Islands sentencing provision for second-degree murder was

unconstitutionally vague because it did not set a maximum penalty, and that his

sentence violated his right to equal protection because it was harsher than other

similarly situated defendants. Later that year, Judge Cabret recused herself from

Martinez‘s habeas case without explanation, citing 4 V.I. Code §§ 284(4) and 285,

which require recusal if there is the appearance of bias. Martinez‘s habeas petition

was reassigned to Judge Ross—the same judge who had recused himself from

Martinez‘s criminal case.     Judge Ross denied Martinez‘s habeas petition in

October 2004 and subsequently denied Martinez‘s motion for reconsideration.

      Martinez appealed the denial of his habeas petition to the Appellate Division


Islands v. Hodge, 359 F.3d 312, 316 (3d Cir. 2004) (describing the Virgin Islands
                                         4
under 48 U.S.C. § 1613a(a), beginning a protracted journey up and down the

appellate ladder on various procedural issues. On April 26, 2005, the Appellate

Division remanded the case to the Superior Court to determine whether a

certificate of probable cause should be issued under Virgin Islands Rule of

Appellate Procedure 14(b), which requires such a certificate before a habeas

petitioner may appeal the denial of his petition. See Mem. Op., Docket Entry

(―D.E.‖) 39 at 2. But in December 2005, Judge Ross refused to follow Rule 14 on

remand (either by granting a certificate of probable cause or explaining why he

was denying it).     Id. at 3.   Judge Ross believed that Rule 14‘s certificate

requirement was a substantive rule of law that exceeded the Appellate Division‘s

procedural rulemaking authority. Id.

      On January 5, 2007, before the Appellate Division, the Government moved

to dismiss Martinez‘s appeal before the Appellate Division for lack of jurisdiction

because no certificate of probable cause had been issued. Martinez subsequently

filed the opening brief in his appeal of the denial of his habeas petition. But in

April, Martinez moved to amend his opening brief to add a new argument—that

due process required Judge Ross to recuse himself from ruling on Martinez‘s

habeas petition—and Martinez also filed his opposition to the Government‘s

motion to dismiss his appeal.


court system in existence at the time).
                                          5
      In February 2008, the Appellate Division remanded the case again to the

Superior Court to consider whether to issue a certificate of probable cause. See

Mem. Op., D.E. 39 at 5.       The Appellate Division apparently never ruled on

Martinez‘s motion to amend his opening brief. While the case was pending before

the Superior Court for a certificate of probable cause, Martinez asked the Appellate

Division to suspend the probable-cause requirement of Rule 14 because he

believed it was unconstitutional for violating the principle of separation of powers.

In November 2010, the Appellate Division held that it could retain post-remand

jurisdiction over Martinez‘s motion and took his motion under advisement.

      By January 2011, the Superior Court had still not ruled on whether to grant

Martinez a certificate of probable cause so that he could appeal the denial of his

habeas petition. So Martinez appealed the dismissal of his case to this Court and

also petitioned this Court for a writ of mandamus directing the Appellate Division

to exercise post-remand jurisdiction over the denial of his habeas petition. See In

re Martinez, 422 F. App‘x 92, 93 (3d Cir. 2011) (per curiam). After filing his

appeal and petition in this Court, the Superior Court finally issued a certificate of

probable cause. Id. at 94. Consequently, this Court dismissed Martinez‘s appeal

for lack of jurisdiction and denied his petition for a writ of mandamus. Id. at 94–

95.

      With a certificate of probable cause in hand, the Appellate Division

                                         6
proceeded to consider Martinez‘s appeal of his habeas petition on May 13, 2011.

Martinez had already filed his opening brief in January 2007, so the Appellate

Division set a briefing schedule for the Government‘s response brief and

Martinez‘s reply brief. The Government, however, never filed its response brief.

See Mem. Op., D.E. 104 at 23 n.26. On July 7, 2011, the Appellate Division

affirmed the Superior Court‘s denial of Martinez‘s habeas petition, more than six

years after Martinez had first filed his appeal. See id.

      Martinez timely appealed the merits of his habeas petition to this Court.5

                                          II.

      Martinez says that due process required his sentencing judge, Judge Cabret,

to recuse herself from presiding over his criminal case.6 Appellant‘s Br. at 28.


5
  The Appellate Division had jurisdiction over Martinez‘s appeal for the same
reasons we recently explained in Hughley v. Government of the Virgin Islands, No.
11-3845, slip op. at 4–6 (3d Cir. Aug. 22, 2013). We have jurisdiction under 48
U.S.C. § 1613a(c) and 28 U.S.C. § 1291. Furthermore, Martinez‘s appeal to this
Court may proceed despite the lack of a certificate of appealability. Under 28
U.S.C. § 2253(c), a defendant in custody pursuant to a sentence of the Superior
Court must obtain a certificate of appealability before he can appeal the denial of
his habeas petition under 28 U.S.C. § 2254. See Walker v. Gov’t of the Virgin
Islands, 230 F.3d 82, 89 (3d Cir. 2000). Like habeas petitions under state law,
however, the requirements in § 2253 for habeas petitions filed under § 2254
(including the requirement of a certificate of appealability) do not apply to a
habeas petition filed under Virgin Islands local law. Martinez‘s petition was filed
under 5 V.I. Code § 1303 and therefore § 2253‘s certificate-of-appealability
requirement does not apply.
6
  Before the Appellate Division, Martinez also argued that the Virgin Islands
recusal statutes required Judge Cabret‘s recusal—an argument that the Appellate
Division rejected on its merits. We do not address this argument because
                                           7
Although ―[a] fair trial in a fair tribunal is a basic requirement of due process,‖ In

re Murchison, 349 U.S. 133, 136 (1955), ―most matters relating to judicial

disqualification d[o] not rise to a constitutional level,‖ FTC v. Cement Institute,

333 U.S. 683, 702 (1927). Due process requires recusal only when a judge ―has a

direct, personal, substantial, pecuniary interest in a case‖ or when there are

―circumstances in which experience teaches that the [objective] probability of

actual bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.‖ Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–

77 (2009) (internal quotation marks and citations omitted). Martinez relies on both

grounds: (1) that Judge Cabret‘s ―harsh‖ and unauthorized initial sentence of life

imprisonment shows that she was actually biased against him, and (2) that Judge

Cabret‘s friendship and work relationship with her bailiff, the aunt of Martinez‘s

victim, created a serious risk of actual bias requiring recusal.

      Neither argument passes muster.          ―[J]udicial rulings alone almost never

constitute a valid basis‖ requiring recusal. Mass. Sch. of Law at Andover, Inc. v.

Am. Bar Ass’n, 107 F.3d 1026,1043 (3d Cir. 1997) (quoting Liteky v. United

States, 510 U.S. 540, 555 (1994)). If anything, the record in this case demonstrates

that Judge Cabret acted impartially: Although she initially erred by imposing an


Martinez‘s briefs in this Court focus on whether due process mandated Judge
Cabret‘s recusal. In any event, we agree with the Appellate Division‘s conclusion
that the Virgin Islands recusal statutes did not require Judge Cabret‘s recusal.
                                           8
unauthorized life sentence for second-degree murder, she promptly corrected that

error by changing Martinez‘s life sentence to a seventy-five year sentence. And

when Martinez subsequently asked her to reduce that seventy-five year sentence,

she did so by cutting it nearly in half. Such evenhanded treatment is hardly the

mark of a biased judge.

      Nor does Judge Cabret‘s relationship with the victim‘s aunt present one of

the ―extraordinary situation[s] where the Constitution requires recusal‖ because of

the serious risk of actual bias. Caperton, 556 U.S. at 887. Our sister courts of

appeals have consistently refused to hold that due process mandates recusal based

on nothing more than a judge‘s familial or official relationships to others in the

courtroom. See, e.g., Clemens v. U.S. Dist. Court for the Cent. Dist. of Cal., 428

F.3d 1175, 1180 (9th Cir. 2005) (―[M]andatory disqualification . . . is not

warranted simply because of a professional relationship with a victim.‖); Fero v.

Kerby, 39 F.3d 1462, 1479 (10th Cir. 1994) (holding that due process does not

mandate recusal in a criminal case where the judge‘s son worked for the

prosecution and the judge‘s brother-in-law was plaintiff‘s counsel in a wrongful

death action arising out of the criminal case because these interests were ―too

remote and insubstantial to create a presumption of bias‖); Dyas v. Lockhart, 705

F.2d 993, 997 (8th Cir. 1983) (holding that there was not an unconstitutionally

high probability of actual bias where a defendant was convicted of felony-murder

                                        9
before a judge whose nephew, brother, and son were prosecuting the case and his

wife was the court reporter). And as we have previously explained, the Supreme

Court has never held ―that an appearance of bias on the part of a judge, without

more, violated the Due Process Clause.‖ Johnson v. Carroll, 369 F.3d 253, 262

(3d Cir. 2004).    To the contrary—the Constitution leaves regulation of such

―matters of kinship‖ and ―remoteness of interest‖ to ―legislative discretion.‖

Caperton, 556 U.S. at 876 (quoting Turney v. Ohio, 273 U.S. 510, 523 (1927)).

Consequently, due process did not require Judge Cabret to recuse herself.

                                        III.

      Martinez similarly argues that due process required Judge Ross to recuse

himself from ruling on Martinez‘s habeas petition because Judge Ross‘s ―brother is

married to the victim‘s wife‘s aunt.‖ Appellant‘s Br. at 10. As a threshold matter,

Martinez has waived this argument. He did not present this argument in his

opening brief before the Appellate Division. Although he later moved to amend

his brief to include this argument and the Appellate Division did not explicitly rule

on his motion to amend, the Appellate Division impliedly denied his motion by not

addressing this argument in its opinion upholding the denial of his habeas petition.

Moreover, Martinez did not mention this argument again to the Appellate Division

during the more-than-four years that passed between his attempt to amend his brief

and the Appellate Division‘s ruling, despite the case moving up and down the

                                         10
appellate ladder multiple times during that period. Martinez therefore did not

―unequivocally‖ present this argument to the lower court ―in a manner that

permit[ted] the court to consider its merits.‖ Shell Petroleum, Inc. v. United States,

182 F.3d 212, 218 (3d Cir. 1999).

      At all events, for the same reasons that Judge Cabret‘s working relationship

and friendship with the victim‘s aunt did not require recusal, Judge Ross‘s remote

familial relationship with Martinez‘s victim did not require him to recuse himself

from ruling on Martinez‘s habeas petition. See United States v. Mansoori, 304

F.3d 635, 667 (7th Cir. 2002) (―Conflicts arising from the judge‘s familial

relationships normally do not mandate recusal under the due process clause.‖

(citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986))).

                                         IV.

      Martinez argues that 14 V.I. Code § 923—the Virgin Islands sentencing

provision for second-degree murder—is unconstitutionally vague because it sets a

five-year minimum penalty without setting a maximum penalty. Appellant‘s Br.

at 14. Under the Constitution‘s Due Process Clause, a sentencing provision is

unconstitutionally vague if it fails to give notice that the punishment imposed is

one of the possible penalties. Gov’t of the Virgin Islands v. D.W., 3 F.3d 697, 699

(3d Cir. 1993) (citing United States v. Batchelder, 442 U.S. 114, 121 (1979)). We

review the constitutionality of a federal statute de novo. Abdul-Akbar v. McKelvie,

                                         11
239 F.3d 307, 311 (3d Cir. 2001). ―Where, as here, a statute does not involve

rights guaranteed by the First Amendment, we examine whether it is vague as

applied to the affected party.‖ United States v. Fullmer, 584 F.3d 132, 152 (3d Cir.

2009) (internal quotation marks omitted).

      Martinez‘s void-for-vagueness argument fails. Our sister courts of appeals

have repeatedly and uniformly rejected the argument that a criminal statute is

unconstitutionally void just because it does not establish a maximum penalty. See,

e.g., United States v. Davis, 801 F.2d 754, 756–57 (5th Cir. 1986) (―It is well

established that sentencing statutes are not unconstitutionally vague for failure to

fix a maximum sentence.‖), superseded by statute, 18 U.S.C. § 924; United States

v. Bridges, 760 F.2d 151, 154 (7th Cir. 1985) (rejecting the argument that 18

U.S.C. § 841(b)(1)(A) is unconstitutional because it failed to specify a maximum

sentence); United States v. Sims, 529 F.2d 10, 12 (8th Cir. 1976) (―Due process is

not violated by failure of a sentencing statute to specify the maximum sentence of

imprisonment or parole.‖ (internal quotation marks and citations omitted)); Binkley

v. Hunter, 170 F.2d 848, 849–50 (10th Cir. 1948) (―Under a statute such as this,

fixing a minimum sentence and leaving the imposition of the maximum sentence to

the court, and the only limitation upon the power of the court in imposing sentence

would be that of the Eighth Amendment . . . .‖). And Martinez does not cite any

authority to the contrary.   Indeed, our prior decisions make clear that § 923

                                        12
authorizes imprisonment for any ―fixed definite term of years‖ (that is, not life

imprisonment), see Ruiz, 365 F.2d at 501, a range that squarely includes

Martinez‘s thirty-five-year sentence. See United States v. Moyer, 674 F.3d 192,

211 (3d Cir. 2012) (―In criminal cases, because vagueness attacks are based on

lack of notice, they may be overcome in any specific case where reasonable

persons would know their conduct puts [them] at risk of punishment under the

statute.‖ (internal quotation marks and citations omitted)).

      Stripped of his void-for-vagueness challenge, Martinez‘s real complaint is

that his thirty-five-year sentence was unconstitutionally disproportionate to his

crime. See Appellant‘s Br. at 23 (―If the courts of the Virgin Islands are allowed to

continue to arbitrarily and discriminately sentence criminal defendants to lengthy

sentences on convictions of second degree murder under 14 V.I.C. § 923(b)

without any legally fixed bounds . . . .‖); id. at 27 (stating that ―no one convicted

for the same offense in [Martinez‘s] sentencing year‖ received as ―harsh‖ of a

sentence as Martinez did). Of course, the Eighth Amendment, ―which forbids

cruel and unusual punishments,‖ does ―contain[] a narrow proportionality principle

that applies to noncapital sentences.‖ United States v. Walker, 473 F.3d 71, 79 (3d

Cir. 2007) (quoting Ewing v. California, 538 U.S. 11, 20 (2003)). And although

this narrow proportionality principle ―applies to sentences for terms of years‖ (such

as Martinez‘s sentence), ―only an extraordinary case will result in a constitutional

                                          13
violation.‖ Id. (citing Lockyer v. Andrade, 538 U.S. 63, 72, 77 (2003)); see also

Rummel v. Estelle, 445 U.S. 263, 272 (1980) (―Outside the context of capital

punishment, successful challenges to the proportionality of particular sentences

have been exceedingly rare.‖).

      This is not such an extraordinary case. Martinez‘s sentence is within the

limits set by the Virgin Islands legislature. See United States v. Miknevich, 638

F.3d 178, 186 (3d Cir. 2011) (―Generally, a sentence within the limits imposed by

statute is neither excessive nor cruel and unusual under the Eighth Amendment.

This is so because we accord substantial deference to [the legislature], as it

possesses broad authority to determine the types and limits of punishments for

crimes.‖ (citations omitted)). Martinez does not explain why, ―as is his burden,‖

his thirty-five-year sentence for second-degree murder is cruel and unusual. Id.

By contrast, the Appellate Division has already sufficiently explained why

Martinez‘s interim sentence of seventy-five years was not grossly disproportionate

to his crime:

      Martinez shot the victim from behind and seven more times after he
      was already down, three of which were to the back of the head.
      According to the witnesses, Martinez calmly walked around the fallen
      victim, methodically and repeatedly shooting him. Additionally, the
      trial court noted the facts before it tending to show that this was a
      revengeful, purposeful killing.

Virgin Islands v. Martinez, 1999 U.S. Dist. LEXIS 20045, at *10–11 (D.V.I. App.

Div. 1999). Given the circumstances of his crime and his thirty-five-year sentence,
                                        14
this case does not remotely resemble any of the rare situations in which the

difference between the crime and the sentence was unconstitutionally

disproportionate. Compare Solem v. Helm, 463 U.S. 277, 281 (1983) (holding that

the Eighth Amendment prohibited a life sentence without the possibility of parole

for a recidivist offender convicted of ―uttering a ‗no account‘ check for $100‖),

with Harmelin v. Michigan, 501 U.S. 957, 961 (1991) (rejecting a proportionality

challenge to a mandatory sentence of life without the possibility of parole imposed

on a first-time offender convicted of possessing 672 grams of cocaine), and

Walker, 473 F.3d at 83 (concluding that a defendant‘s fifty-five-year sentence for

armed robberies and drug-trafficking crimes was not unconstitutional).

Consequently, we reject Martinez‘s proportionality challenge to his sentence.

                                         V.

      Martinez    also   argues   that   the   Virgin   Islands   Legislature   has

unconstitutionally delegated discretion to the Virgin Islands courts to impose any

sentence for second-degree murder (above the mandatory minimum of five years).

He also argues that this arrangement violates separation of powers. He did not

present these arguments in his habeas petition and did not raise these arguments

before the District Court. Consequently, these remaining arguments are waived,

and we decline to consider them now. Shell Petroleum, Inc., 182 F.3d at 219

(noting ―the well-established rule that absent compelling circumstances an

                                         15
appellate court will not consider issues that are raised for the first time on appeal‖

(quoting Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir. 1984))).

                             *     *      *      *     *

      Accordingly, we will affirm the denial of Martinez‘s habeas petition.




                                         16
Martinez v. Stridiron, No. 11-2938

HARDIMAN, Circuit Judge, dissenting.

       As I explained in my dissent in Hughley v. Government of the Virgin Islands, 2013

WL 4492709 *3 (3d Cir. Aug. 23, 2013), I believe that a certificate of appealability is

required before a Virgin Islands prisoner may appeal an order of the District Court for the

Virgin Islands denying his habeas petition to the Court of Appeals, regardless of whether

his initial petition was filed pursuant to 5 V.I.C. § 1303 or 28 U.S.C. § 2254. Because no

certificate of appealability was obtained in this case, we lack jurisdiction to hear the

appeal. See 28 U.S.C. § 2253. Accordingly, I respectfully dissent.
