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

No. 03-1031
HARRISON FRANKLIN,
                                          Petitioner-Appellant,
                               v.

GARY R. MCCAUGHTRY, Warden,
                                         Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 02-C-0278—William C. Griesbach, Judge.
                         ____________
   ARGUED JUNE 15, 2004—DECIDED FEBRUARY 24, 2005
                     ____________


  Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
  WOOD, Circuit Judge. In February 1996, Harrison
Franklin was convicted by a Wisconsin court of armed
robbery, reckless endangerment, and bail jumping. To make
matters worse, at the time he committed these crimes he
was a repeat offender and free on bond pending his appeal
of a prior battery conviction. After exhausting his remedies
in the state courts, Franklin filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254. The district court
denied the petition but granted a certificate of appealability
on the issues of trial-judge bias and ineffective assistance
of counsel. On appeal, Franklin alleges that the state court
judge was actually biased and that the Wisconsin Court of
Appeals’ rejection of this point was contrary to, and consti-
2                                              No. 03-1031

tuted an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the
United States. Although the burden is high on habeas
corpus petitioners, we conclude that Franklin has met these
demanding standards here; we therefore vacate and remand
for issuance of the writ.


                             I
  In 1996 Franklin was charged with armed robbery,
reckless endangerment, and bail jumping. His case was
assigned to Judge Bruce E. Schroeder, of the Circuit
Court of Kenosha County, Wisconsin. At the time, Judge
Schroeder was presiding over another case, State v. Taylor,
No. 95 CM 1326. In Taylor, Judge Schroeder had denied
Taylor release without bail and set an appeal bond. Taylor
sought relief from the Wisconsin Court of Appeals, alleging
that the appeal bond was contrary to the rule established in
State v. Lipke, 521 N.W.2d 444 (Wis. Ct. App. 1994). In
Lipke, the court held that a defendant cannot be denied the
right to release pending an appeal solely on the ground of
indigence. Lipke, 521 N.W.2d at 448.
  In April 1996, Judge Schroeder took the highly unusual
step of filing a memorandum with the state court of appeals
in support of his decision to deny Taylor’s request for
release without bail. In that memorandum, he asserted that
the remarks in Lipke regarding the subject of bail were
dicta and therefore not binding precedent. He further
opined that Lipke would result in “absurd and unreason-
able” outcomes “because the same indigent defendant
who is held pretrial for failure to post bail is entitled
to immediate release without cash bail upon establish-
ment of his guilt.”
  To illustrate his point, Judge Schroeder pointed to Frank-
lin’s case. He began by stating, “I have also now pending
before me the case of State v. Harrison Franklin, 96 CF
No. 03-1031                                                3

126.” The judge then gave a detailed account of Franklin’s
five previous convictions, relying on information that he had
gleaned from a pre-sentence report in one of Franklin’s
earlier cases. The last conviction, in 1995, resulted in a
three-year sentence, but Franklin was released without
posting bail pursuant to Lipke. Judge Schroeder concluded
his point with the following statement:
    Although the Court of Appeals accepted his attorney’s
    no merit report on December 20, 1995, he was not
    reincarcerated until February 21, 1996, when he was
    taken into custody in a tavern where it is alleged,
    according to the current file, that he stabbed one man
    four times and another twice, during an armed robbery.
  Franklin was convicted in May. In July, before sentenc-
ing, an article appeared in the Kenosha News titled,
“Legislators Oppose Freeing Indigent Without Bail.” The
article referred to two cases, Franklin’s and Taylor’s. The
article further reported that both Judge Schroeder and
Assistant District Attorney Dooley (the attorney who
prosecuted Franklin’s case) had sent their written chal-
lenges to the Wisconsin Court of Appeals.
   Prompted by the article, Franklin moved to recuse Judge
Schroeder from further proceedings in the case “based on
the appearance of partiality and impropriety arising from
the Judge’s opinion of a defendant’s release pending ap-
peal.” Judge Schroeder heard the motion to recuse prior to
sentencing. While Franklin was presenting his recusal
motion, Judge Schroeder interrupted Franklin and asked,
“What did I have to do with the article?” After Franklin
explained that the article had mentioned and quoted him,
Judge Schroeder changed tacks and asked, “What did I do
that suggests some lack of impartiality towards your
client?”
 Judge Schroeder continued to deny that his impartiality
was in doubt, making this statement on the record:
4                                                No. 03-1031

    I am really—I want, so the record is clear, because
    I refuse to accept responsibility for what a reporter
    wrote in the newspaper unless you are claiming that
    I said this to this reporter or that I in some way acted
    in a manner which suggests lack of impartiality to-
    wards the case of Mr. Franklin. I am not clear on what
    you are claiming I said or did and under what circum-
    stances that give rise to your claims.
He then asked Franklin, “Did you call this reporter and ask
the reporter where did you get the quotes that you attribute
to Judge Schroeder?” Franklin stated that he had, but the
reporter had not returned his call. After Franklin said that
his motion relied on the newspaper article, Judge Schroeder
finally admitted his role in the article and stated,
    All right. Well, for the record a reporter did seek me out
    with respect to this issue and I declined to discuss it.
    When I say this issue, I am talking about the rule of the
    Court of Appeals in State v. Lipke. I have no idea why
    the reporter had an interest in the Lipke issue.
    I did absolutely nothing to stoke the fire with respect to
    that decision. In the course of the written memoran-
    dum, which I filed in this case, I did make reference
    to this case as it was then pending in writing. And
    when I was approached by Mr. Krekowicz from the
    newspaper, I did tell him that I had issued a written
    memorandum . . . . And when he asked to interview
    me, I declined an interview and told him that what
    I had to say was already of record in the memorandum
    which was in the file, which was 95-CM-1326. Now, in
    that memorandum there is reference to Mr. Franklin’s
    case.
At this point in the hearing, Judge Schroeder read aloud the
paragraphs of the Taylor memorandum that referred to
Franklin. This was the first time Franklin learned about
the memorandum.
No. 03-1031                                                 5

  Following Judge Schroeder’s reading of the memorandum,
Franklin commented that the court had included informa-
tion in the memorandum that was not in the record of the
present case. Franklin argued that by reading the memo-
randum into the record, the information Judge Schroeder
had independently obtained was now a part of the record in
this case. Furthermore, Franklin pointed out that he could
not be certain about what information the court would be
relying on to determine the appropriate sentence in the case
at hand.
  Judge Schroeder denied the motion to recuse, stating that
he was not biased against Franklin and that the memoran-
dum contained only factually accurate information. Addi-
tionally, Judge Schroeder emphasized that he had used the
word “allegations” in his references to Franklin’s pending
case:
    And I agree with you that it would have been improper
    had I said he was taken into custody in a tavern where
    he had stabbed two people in the course of an armed
    robbery. That would have been improper because
    it would have suggested that I had already made a
    conclusion about his guilt. But I do not feel that was
    done.
Judge Schroeder agreed, however, that Franklin was
entitled to respond to the additional information and offered
the parties a chance to examine the record in the earlier
case. The parties chose to proceed.
  Franklin was sentenced to 53 years’ incarceration, the
maximum sentence for both the armed robbery and the bail
jumping counts. He also received 16 years, the maximum
sentence, for the weapon charges, but the sentence was
stayed in favor of probation. If probation is revoked, the two
16-year terms must be served consecutively.
  Franklin appealed his conviction and sentence on due
process grounds. He argued that the U.S. Constitution
guarantees a defendant’s right to be tried by an impartial
6                                                 No. 03-1031

judge, and that his trial before Judge Schroeder vio-
lated that right because the judge demonstrated bias
when he referred to Franklin’s case in the Taylor memoran-
dum. Franklin argued that Judge Schroeder “targeted” him
and “used him as an example” while his case was pending
before him. Franklin then requested that the court vacate
his conviction and sentence.
   The Wisconsin Court of Appeals affirmed Franklin’s
conviction. In addressing the recusal issue, the court
examined only whether Judge Schroeder should have
recused himself at sentencing; it never discussed Franklin’s
request that the court vacate his conviction. Applying State
v. Rochelt, 477 N.W.2d 659 (Wis. Ct. App. 1991), the court
first held that Judge Schroeder’s statement that he was not
biased against Franklin was sufficient to show that he was
not subjectively biased. Next, it observed that all of the
references in the memorandum, including those to Frank-
lin’s criminal history and the “alleged” stabbing, were
factually accurate, and it noted that Franklin did not
dispute the accuracy of those facts. For these reasons, in the
court’s view, Franklin had failed to demonstrate that
recusal was necessary “under the objective portion of the
recusal test.” Franklin appealed to the Wisconsin Supreme
Court, which summarily denied his petition for review.
  In 2002, Franklin filed his amended petition for a writ
of habeas corpus. The district court denied his petition,
stating that Franklin had not pointed to any Supreme Court
case that was unreasonably applied by the Wisconsin Court
of Appeals, and he also did not show “actual bias” on the
part of Judge Schroeder. The court then granted a certifi-
cate of appealability that included the issue of judicial bias
by Judge Schroeder.


                               II
    An application for a writ of habeas corpus by a state court
No. 03-1031                                                7

prisoner must be granted if the state court adjudication
resulted in a decision that was “contrary to . . . clearly
established Federal law,” 28 U.S.C. § 2254(d)(1), or that was
“based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceed-
ing,” § 2254 (d)(2).
  The Due Process Clause guarantees litigants an impartial
judge, reflecting the principle that “no man is permitted to
try cases where he has an interest in the outcome.” In re
Murchison, 349 U.S. 133, 136 (1955). Where the judge has
a direct, personal, substantial, or pecuniary interest, due
process is violated. Bracy v. Gramley, 520 U.S. 899, 905
(1997); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
(1986); Ward v. Monroeville, 409 U.S. 57, 60 (1972); Tumey
v. Ohio, 273 U.S. 510, 523 (1927); Johnson v. Mississippi,
403 U.S. 212, 215-16 (1971); In re Murchison, 349 U.S. at
137-39.
  The general presumption is that judges are honest,
upright individuals and thus that they rise above biasing
influences. Tumey, 273 U.S. at 532; Withrow v. Larkin, 421
U.S. 35, 47 (1975); Taylor v. Hayes, 418 U.S. 488, 501
(1974); see Tezak v. United States, 256 F.3d 702, 718 (7th
Cir. 2001); Del Vecchio v. Illinois Dep’t of Corr., 31 F.3d
1363, 1375 (7th Cir. 1994) (en banc); Jones v. Luebbers, 359
F.3d 1005, 1013-14 (8th Cir. 2004). “A person could find
something in the background of most judges which in many
cases would lead that person to conclude that the judge has
a possible temptation to be biased. But not all temptations
are created equal.” Del Vecchio, 31 F.3d at 1372 (internal
quote omitted). Nevertheless, the presumption is
rebuttable. Sometimes, “the influence is so strong that we
may presume actual bias,” Del Vecchio, 31 F.3d at 1375; see
Withrow, 421 U.S. at 47. In rare cases, there may even be
evidence of actual bias. See Bracy, 520 U.S. at 905; Bracy v.
Schomig, 286 F.3d 406, 411 (7th Cir. 2002) (en banc). To
prove disqualifying bias, a petitioner must offer either
8                                                 No. 03-1031

direct evidence or “a possible temptation so severe that we
might presume an actual, substantial incentive to be
biased.” Del Vecchio, 31 F.3d at 1380. Absent a “smoking
gun,” a petitioner may rely on circumstantial evidence to
prove the necessary bias. Bracy, 286 F.3d at 411-412; id. at
422 (Posner, J., concurring in part; dissenting in part); id.
at 431 (Rovner, J., concurring in part; dissenting in part).
  The question for us is whether the decision of the Wiscon-
sin court’s finding that Franklin failed to show actual bias
was contrary to clearly established federal law, as articu-
lated by the U.S. Supreme Court, or was based on either an
unreasonable application of established principles or an
unreasonable determination of the facts. See Williams v.
Taylor, 529 U.S. 362, 376 (2000). On direct appeal, Franklin
challenged his conviction and sentence on due process
grounds based on the federal Constitution’s guarantee of a
defendant’s right to be tried by an impartial judge. As noted
above, the Wisconsin Court of Appeals limited its analysis
to an assessment of his claim under the its own decision in
Rochelt, 477 N.W.2d 659.
   Rochelt sets forth a two-part test to determine whether a
defendant’s due process right to an impartial judge has
been violated. Rochelt, 477 N.W.2d at 661. The first, a
“subjective” inquiry, is based on the judge’s own determina-
tion of his or her impartiality. Id. The second, an “objective”
examination, asks whether a reasonable person
could question the judge’s impartiality. Id. If, after the
objective inquiry, the judge’s impartiality appears question-
able, Rochelt instructs courts to perform a harmless error
analysis. Id. at 662 & n.3. The Rochelt decision has little to
say about federal law; it acknowledges Aetna Life Ins. Co.
v. Lavoie, 475 U.S. 813 (1986) (holding that a state supreme
court justice’s participation in a case violated the appel-
lant’s due process rights, where the justice had a direct,
personal, substantial, and pecuniary interest in that case)
in a footnote, but it did not specifically discuss Aetna Life or
No. 03-1031                                                9

any other U.S. Supreme Court case in analyzing Rochelt’s
claim. 477 N.W.2d at 662.
  Limiting the inquiry into judicial bias to the Rochelt test
was inconsistent with the governing decisions of the U.S.
Supreme Court. Both components of Rochelt look only
for bias that resulted in demonstrable prejudice to the
defendant. 477 N.W.2d at 662 (“A litigant is denied due
process only if the judge, in fact, treats him or her un-
fairly.”) (internal quote omitted). After applying the two
components, if the court finds evidence of actual partiality,
it then applies a harmless error analysis. Id. (“[E]ven
though the trial judge’s letter raises a reasonable question
regarding the judge’s impartiality, the fact is that Rochelt
received a fair trial and therefore, the judge’s refusal to
recuse himself was harmless error.”)
  We conclude that the Rochelt analysis is contrary to
clearly established federal law for two reasons. First, as
Judge Evans of this court observed in his opinion for two
different majorities of this court in Bracy v. Schomig, 286
F.3d at 410-11, the Supreme Court has decided that both
actual bias and the appearance of bias violate due process
principles. See Bracy, 520 U.S. at 905 (actual bias); Tumey,
273 U.S. at 535 (actual pecuniary interest and thus actual
bias); Aetna Life Ins. Co., 475 U.S. at 825 (“The Due Process
Clause ‘may sometimes bar trial by judges who have no
actual bias and who would do their very best to weigh the
scales of justice equally between contending parties.’ ”)
(citing In re Murchison, 349 U.S. at 136). Second, where
there is a structural error, such as judicial bias, harmless
error analysis is irrelevant. See Edwards v. Balisok, 520
U.S. 641, 647 (1997); Bracy, 286 F.3d at 414; Cartalino v.
Washington, 122 F.3d 8, 9-10 (7th Cir. 1997).
  Furthermore, even if Rochelt is better understood as a
decision that is not squarely contrary to the law as an-
nounced by the U.S. Supreme Court, we conclude in the
10                                               No. 03-1031

alternative that the Wisconsin Court of Appeals unreason-
ably determined that Judge Schroeder was not actually
biased. Our alternative ruling is not based on the trial
rulings that Franklin has criticized, which we find too
ambiguous to be of much use. Instead, it is based on the
references in the Taylor memorandum to Franklin’s
pending case, particularly as seen in the light of the judge’s
obvious reluctance to admit to Franklin that he had written
the memorandum at all or that he had been asked about it
by the reporter.
  In the Taylor memorandum, Judge Schroeder included
Franklin as an example of the terrible things that happen
when indigent prisoners are released on bail pending
their appeals: they simply commit more crimes while
free. In context, despite the judge’s use of the magic word
“alleged” in the memorandum, the inference is irresistible
that the judge was pointing to Franklin as the latest
such incorrigible criminal, even though Franklin’s trial had
not yet taken place. This is powerful circumstantial evi-
dence that Judge Schroeder had pre-judged Franklin’s case.
We note as well that, for purposes of the rule in Liteky v.
United States, 510 U.S. 540 (1994), the Taylor memoran-
dum and Judge Schroeder’s contacts with the newspaper
were extrajudicial activities vis-à-vis Franklin’s own case.
  The Wisconsin court nonetheless concluded that the
memorandum and the trial rulings did not raise any
reasonable questions regarding Judge Schroeder’s impar-
tiality. In essence, the court held that Judge Schroeder was
not biased because he said that he was not biased and the
facts that he included in the memorandum were true and
not disputed by Franklin. But, under the Supreme Court’s
decisions in cases like Tumey, Ward, Aetna Life, and
Murchison, the judge’s own word for the presence or
absence of bias is never enough, nor is it particularly
probative that various historical facts the judge recites are
accurate. In our view, no reasonable trier of fact could fail
No. 03-1031                                                 11

to infer actual bias here. Judge Schroeder’s motive in citing
Franklin in the memorandum is clear— prisoners released
under Lipke are free to commit more crimes. The memoran-
dum demonstrates that Judge Schroeder decided the issue
of Franklin’s guilt long before trial. Therefore, the state
appellate court unreasonably applied the Supreme Court’s
bias rules to the facts of Franklin’s claim.
  Although Judge Schroeder asserted that he would have
cited Franklin’s case in his memorandum even if
the robbery had never occurred, this claim defies reason.
Had Franklin not committed an offense while on release,
his case would have offered no support whatsoever to Judge
Schroeder’s criticism of Lipke. The value of Franklin’s case
to Judge Schroeder’s position lay in the fact that Franklin,
out of custody because of Lipke, committed another violent
crime, one that could have been prevented had he been
incarcerated while awaiting appeal. We cannot contemplate
any situation where acquitting Franklin or convicting him
of a lesser included offense would have helped Judge
Schroeder to make his point.
  We are not saying that due process would be offended if
a judge presiding over a case expressed a general opinion
regarding a law at issue in a case before him or her.
Withrow, 421 U.S. at 48-49; see Del Vecchio, 31 F.3d at 1377
n.3. The problem arises when the judge has prejudged the
facts or the outcome of the dispute before her. In those
circumstances, the decisionmaker “cannot render a decision
that comports with due process.” Baran v. Port of Beaumont
Navigation Dist. of Jefferson County Tex., 57 F.3d 436, 446
(5th Cir. 1995); see Trust & Inv. Advisers, Inc. v. Hogsett, 43
F.3d 290, 295 (7th Cir. 1994); Yamaha Motor Corp., U.S.A.
v. Riney, 21 F.3d 793, 798 (8th Cir. 1994). Compare United
States v. Microsoft Corp., 253 F.3d 34, 108-10 (D.C. Cir.
2001) (disqualifying district court judge who gave inter-
views to the press about his views of government civil suit
pending before him). Here, the only inference that can be
12                                              No. 03-1031

drawn from the facts of record is that Judge Schroeder
decided that Franklin was guilty before he conducted
Franklin’s trial. This is a clear violation of Franklin’s due
process rights.


                            III
  Because Judge Schroeder was actually biased, Franklin
is entitled to a new trial. See Edwards, 520 U.S. at 647;
Bracy, 286 F.3d at 414; Cartalino, 122 F.3d at 9-10. Accord-
ingly, we VACATE and REMAND this case with instructions
to grant Franklin’s petition for habeas corpus unless the
state institutes proceedings to re-try him within 60 days.
No. 03-1031                                         13

A true Copy:
      Teste:

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




               USCA-02-C-0072—2-24-05
