                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2004

Clemmons v. Wolfe
Precedential or Non-Precedential: Precedential

Docket No. 02-4457




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Recommended Citation
"Clemmons v. Wolfe" (2004). 2004 Decisions. Paper 428.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/428


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                    PRECEDENTIAL                              Judge*

   UNITED STATES COURT OF                             (Filed: July 29, 2004)
APPEALS FOR THE THIRD CIRCUIT

                                            Patricia C. Shea (Argued)
                                            David R. Fine
             No. 02-4457                    Kirkpatrick & Lockhart
                                            Harrisburg, PA 17101

                                                   Attorneys for Appellant
      CHARLIE CLEMM ONS,
                                            Francis T. Chardo (Argued)
                           Appellant        James P. Barker
                                            Deputy District Attorney
                   v.                       Office of District Attorney
                                            Harrisburg, PA 17101
    WILLIAM J. WOLFE, Supt.;
  DISTRICT ATTORNEY OF THE                         Attorneys for Appellee
COUNTY OF DAUPHIN; ATTORNEY
  GENERAL OF THE STATE OF
  PENNSYLVANIA, *GERALD J.                        OPINION OF THE COURT
           PAPPERT

 *(Amended - See Clerk’s Order dated        SLOVITER, Circuit Judge.
              3/10/04)
                                                   The District Court judge who
                                            dismissed Appellant’s petition for a writ of
                                            habeas corpus had been the state court
  On Appeal from the United States          judge who presided over his criminal trial.
District Court for the Middle District of   The principal question we consider is
              Pennsylvania                  whether the judge should have sua sponte
        (D. C. No. 02-cv-00561)             recused from the habeas proceeding.
   District Judge: Hon. William W.
                Caldwell


         Argued May 5, 2004                 *      Hon. Louis H. Pollak, Senior
                                                   United States District Judge for the
 Before: SLOVITER and FUENTES,                     Eastern District of Pennsylvania,
 Circuit Judges, and POLLAK, District              sitting by designation.
                      I.                              Clemmons’ habeas petition as untimely
                                                      and all other pending motions as moot.
        Appellant Charlie Clemmons’                   There was no specific reference to
conviction arose out of a 1980 incident of            Clemmons’ request for counsel.
“road rage,” in which Clemmons shot and
killed another motorist following an                          Clemmons filed an application for
altercation stemming from a traffic                   a Certificate of Appealability (COA) to
incident. App. at 10. Clemmons was                    this court. We granted the COA directed
convicted by a jury in the Court of                   to the following question: whether the
Common Pleas of Dauphin County,                       district court judge was required to recuse
Pennsylvania of first-degree murder.                  himself from hearing the federal habeas
Then-state judge William W. Caldwell                  corpus proceedings attacking the trial and
presided over the 1981 state court trial              conviction over which he presided when
and, following Clemmons’ conviction,                  he was a state court judge. The same day
Judge Caldwell sentenced him to life                  we appointed counsel to represent
imprisonment for first-degree murder. 18              Clemmons in this matter against Appellees
Pa. Const. Stat. Ann. § 2502. Clemmons                William J. Wolfe, District Attorney of the
filed a series of four petitions in state court       County of Dauphin, and Pennsylvania
for collateral relief under the Post                  Attorney General Gerald J. Pappert. 1
Conviction Relief Act (PCRA), 42 Pa.                  Three months later we amended the COA
Cons. Stat. Ann. §§ 9541 et seq., and its             to add the following issue: whether the
predecessor statute. Each petition was                district court judge abused his discretion
denied, and the denials of the first three            by deciding the merits of Appellant’s
petitions were affirmed by the state                  petition for writ of habeas corpus without
Superior Court. The fourth petition was               first addressing Appellant’s request for
dismissed.                                            counsel.

       On February 7, 2002, Clemmons                          On appeal, Clemmons contends that
filed a habeas corpus petition in federal             Judge Caldwell was required to recuse
court pursuant to 28 U.S.C. § 2254. His               himself sua sponte in Clemmons’ 28
petition was eventually assigned to Judge             U.S.C. § 2254 habeas action challenging
Caldwell, who by then had been appointed              the trial and conviction over which Judge
to the United States District Court for the           Caldwell formerly presided as a state court
Middle District of Pennsylvania. On                   judge. Although Clemmons does not
September 27, 2002, Clemmons applied                  explicitly so state, it appears he argues that
for appointment of counsel. On November
27, 2002, Judge Caldwell issued an
opinion in which he acknowledged that he                 1
                                                            The list of Appellees was
had “presided at petitioner’s trial” in state
                                                      amended per Order of the Clerk of Court
court. App. at 10. He then denied
                                                      dated March 10, 2004.

                                                  2
this presents a legal question over which           “error seriously affects the fairness,
we would have plenary review. Second,               integrity or public reputation of judicial
Clemmons contends that the District Court           proceedings.” United States v. Olano, 507
abused its discretion by failing to address         U.S. 725, 732 (1993) (internal quotation
the merits of Clemmons’ application for             marks and citations omitted). On its face,
appointment of counsel before dismissing            the error complained of in this case – a
the motion as moot.                                 federal judge sitting in review of the
                                                    propriety of the state proceedings
                     II.                            conducted by that judge – seriously affects
                                                    the fairness and public reputation of the
        The relevant federal statute, 28            judicial proceedings, and thus we proceed
U.S.C. § 455(a), provides that “[a]ny               to consider whether the habeas judge
justice, judge, or magistrate judge of the          shou ld have sua sponte recused
United States shall disqualify himself in           notwithstanding Clemmons’ failure to
any proceeding in which his impartiality            raise the issue in the habeas proceeding.
might reasonably be questioned.” 28                 We have previously stated that the
U.S.C. § 455(a).2 The Supreme Court has             “public’s confidence in the judiciary . . .
stated that the purpose of this provision is        may be irreparably harmed if a case is
“to promote public confidence in the                allowed to proceed before a judge who
integrity of the judicial process.” Liljeberg       appears to be tainted.” In re Kensington
v. Health Servs. Acquisition Corp., 486             Int’l Ltd., 353 F.3d 211, 220 (3d Cir.
U.S. 847, 860 (1988).                               2003) (emphasis in original) (internal
                                                    quotation marks and citation omitted).
       Clemmons claims that Judge
Caldwell created the appearance of                         When Congress amended Section
impropriety by failing to recuse himself in         455(a) in 1974, it replaced the statute’s
the habeas proceeding because he had                formerly subjective standard with an
presided over the state trial. Because              objective one, stating:
Clemmons did not object to Judge
Caldwell’s failure to recuse in the habeas                 Subsection (a) of the
proceeding, a “plain error standard of                     a m e n d e d s e c t io n 4 5 5
review applies.”       United States v.                    contains the general, or
Dalfonso, 707 F.2d 757, 760 (3d Cir.                       catch- all, provision that a
1983) (citations omitted).       We may                    judge shall disqu alify
overlook the failure to object where the                   himself in any proceeding in
                                                           which “his impartiality
                                                           m i g h t r e a s o na bl y b e
   2                                                       questioned.” This sets up an
      Clemmons disclaims any reliance
                                                           objective standard, rather
on 28 U.S.C. § 144, which requires a
                                                           than the subjective standard
showing of bias on the part of the judge.

                                                3
              set forth in the                      issue and stated that a federal judge should
              e x i s ti n g statu t e              recuse himself or herself from hearing
              through use of the                    habeas petitions if s/he participated in the
              phra s e “ i n h is                   petitioner’s state court proceedings. An
              opinion.”                             almost identical issue was considered by
                                                    the Seventh Circuit in Russell v. Lane, 890
H.R. Rep. No. 93-1453 (1974), reprinted             F.2d 947 (7th Cir. 1989). In that case, the
in 1974 U.S.C.C.A.N. 6351, 6354-55.                 district court judge considered a habeas
                                                    petition even though that judge had
        The bedrock principle of a                  previously been a member of the panel of
hierarchal judiciary that “[n]o judge shall         the state appellate court that affirmed the
hear or determine an appeal from the                conviction. On appeal, the Court of
decision of a case or issue tried by him” is        Appeals for the Seventh Circuit stated that
embedded in 28 U.S.C. § 47, a statute               the judge in question:
inapplicable here because its plain
language only applies to cases on                          was being asked to find that
“appeal,” rather than habeas petitions. The                he had affirmed an
absence of a directly applicable statute in                unconstitutional conviction,
no way diminishes the importance to a                      and, implicitly, that by
litigant of review by a judge other than the               doing so he had become
judge who presided over the case at trial.                 comp licit in sen ding
Of course, a habeas action is not an appeal                [petitioner] to prison in
from the state court action. The state                     violation of [petitioner’s]
courts provide the appeal process.                         constitutional rights . . . . A
However, a habeas action provides the                      federal habeas corpus
criminal defendant with the opportunity to                 proceeding brought by a
have a federal court review the state                      state prisoner is not a
proceedings for constitutional infirmities.                request to a state judge to
In this respect, there is no reason why the                reconsider his ruling. It
same rules governing independence,                         follows the exhaustion of
conflict of interest, or appearance of
partiality should not apply.
                                                    Sixth Circuit involving similar issues to
      Although this court has not
                                                    the case at bar, Morgan v. Money, 210
confronted the precise issue at bar, at least
                                                    F.3d 372 (6th Cir. 2000) (unpublished)
two3 other circuits have addressed this
                                                    and Taylor v. Campbell, 831 F.2d 297
                                                    (6th Cir. 1987) (unpublished), we decline
                                                    to rely upon them because they are both
   3
       Although the parties have called             designated as unpublished and hence not
our attention to two decisions of the               precedential.

                                                4
               the petitioner’s state                impartiality of a judge in such a position.
               remedies and is                       Id. at 1117 (“To say the least, it would be
               addressed to a judge                  unbecoming for a judge to sit in a United
               who was not a                         States Court of Appeals to participate in
               member of the                         the determination of the correctness,
               state-court panel that                propriety and appropriateness of what he
               affirmed           the                did in the trial of the case.”). Although it
               p e t itio n er’s                     recognized that Section 47 was not at issue
               conviction and who                    in the case before it at that time, the court
               had no emotional                      stated that “[t]he same principle is
               com mitm ent to                       involved” because “in federal habeas
               v i n d i c ating s t a te            corpus cases the federal district judges do
               j u s t i c e         a s             sit in review of the proceedings in the state
               administered in the                   courts.” Id. That review is designed to be
               petitioner’s case.                    an independent one, as Justice Blackmun
                                                     noted when he stated “§ 2254 motions
Id. at 948. The court concluded that the             anticipate that the federal court will
petitioner “was entitled to have his habeas          undertake an independent review of the
corpus petition heard by a judge who had             work of the state courts, even where the
not participated in his conviction” and thus         federal claim was fully and fairly litigated”
it remanded the matter to permit the                 in the state court. Reed v. Farley, 512 U.S.
petitioner the opportunity to file a motion          339, 362 (1994) (Blackmun, J., dissenting)
to vacate the order of the district judge that       (emphasis added) (citations omitted).
dismissed several of petitioner’s claims.
Id.                                                          Appellees contend that Clemmons’
                                                     recusal claim should fail because the
        Similarly, in Rice v. McKenzie, 581          record does not show any bias or prejudice
F.2d 1114 (4th Cir. 1978), the Fourth                by Judge Caldwell. We certainly agree
Circuit considered whether a federal                 that there is no evidence that the judge
district judge, who formerly presided as             exhibited any bias against Clemmons. But
the chief justice of the state supreme court         that is not dispositive because actual bias
that reviewed the defendant’s claim, could           is not a requisite element for a valid claim
consider those claims in the context of a            under Section 455(a). In fact, Judge
habeas proceeding in the federal forum               Caldwell granted Clemmons permission to
without running afoul of Section 455(a).             amend his habeas petition, which negates
The court noted that under 28 U.S.C. § 47            any inference of partiality, the focus of
a federal judge may not adjudicate the               section 455(a). Therefore, the asserted
appeal of an issue or case which s/he tried          absence of actual bias is irrelevant; the
as a lower court judge because a                     mere appearance of bias still could
reasonable person might doubt the                    diminish the stature of the judiciary. See

                                                 5
In re Kensington Int’l Ltd., 353 F.3d at                  We see no error in the
220.                                                      District Court’s refusal to
                                                          grant the motion [to recuse].
       Appellees correctly note that twenty
years have passed since the time that Judge        Id. at 237. In particular, we emphasized
Caldwell presided over Clemmons’ state             that the appellant in that case did not
court trial and they argue that Clemmons           challenge any of the judge’s factual
raised the recusal claim as a matter of            findings at trial and only moved to recuse
strategy only after Judge Caldwell denied          the judge “after a lengthy and arduous
his habeas petition. They rely on Martin v.        trial” in which the judge “invested
Monumental Life Insurance Co., 240 F.3d            substantial judicial resources.” Id. at 236,
223, 235-237 (3d Cir. 2001), where we              237. We speculated that “all of these
rejected a claim that the district court           considerations suggest that plaintiff’s
judge, who had recused in a related case,          motion is a desperate effort to overturn an
violated Section 455(a) because he did not         adverse decision.” Id. at 236.
recuse himself in a second proceeding
“involv[ing] the same principa ls,                         Martin is inapposite.           Martin
witnesses, [and] insurance products.” Id.          involved a judge who was challenged on
at 231. The basis for the judge’s first            the basis of his prior institutional
recusal was that he formerly had been a            affiliation on a matter on which he did not
partner at the law firm that represented the       work. Here, the issue is the appearance of
defendant. However, the district judge had         partiality because a judge was asked to
resigned from the firm and terminated his          review allegations regarding his own
financial arrangements with it six years           rulings at the state court trial. Moreover,
prior to that case, and had never                  unlike in Martin, where the district court
represented the defendant while at the             judge had expended considerable time and
firm. In light of these facts, we stated:          effort in a “lengthy and arduous trial,” 240
                                                   F.3d at 236, Judge Caldwell issued only a
       In the instant matter, the                  single decision denying Clemmons’
       relationship between the                    motions and did not hold any hearings. In
       trial judge and the [judge’s                short, there is little risk of inefficiency.
       former] firm had terminated
       several years before the case                       Second,        a l t h o u gh M artin
       commenced; there was no                     emphasized the passage of time between
       blood relationship between                  the state court trial and the federal habeas
       the trial judge and anyone in               proceeding, nothing in the text of Martin
       the [judge’s former] firm;                  suggests that this factor is dispositive.
       there is no claim of any bias               Although the passage of time would be
       by the trial judge; and the                 relevant in a situation in which the recusal
       trial has been concluded.                   issue does not involve the federal judge’s

                                               6
review of his or her actions as a state             confidence in the judiciary, which may be
judge, the case before us raises the latter         irreparably harmed if a case is allowed to
issue and the passage of time cannot                proceed before a judge who appears to be
overcome a reasonable person’s doubts               tainted,” requires that “justice must satisfy
about a judge’s impartiality in judging his         the appearance of justice.”) (quoting In re
or her own past works.                              Asbestos Litig., 977 F.2d 764, 776, 782
                                                    (3d Cir. 1992)). It is important to note that
        Appellees’ contention that the error,       nothing in the record suggests that Judge
if any, in the district judge’s failure to          Caldwell, a conscientious and hard-
recuse did not cause Clemmons prejudice             working judge, proceeded with any sort of
because any district court judge who had            ill motive. However, the focus of our
been assigned the case ultimately would             inquiry is not his actual bias, but rather,
have found Clemmons’ habeas petition to             whether a reasonable person might ascribe
be untimely is beyond the point. In                 such a motive to any judge tasked with
Liljeberg, the Supreme Court instructed             reviewing his past state court rulings in a
that, in determining whether a decision             federal habeas case. For the reasons set
should be vacated based on a federal                forth, we conclude that we are obliged to
judge’s failure to recuse when he had an            vacate the judgment and remand to a
interest in the subject matter, the court           different district court judge.
should “consider the risk of injustice to the
parties in the particular case, the risk that                           III.
the denial of relief will produce injustice
in other cases, and the risk of undermining                As we noted above, the federal
the public’s confidence in the judicial             statute on recusals does not specifically
process” while bearing in mind that                 cover the situation raised by this case. In
“justice must satisfy the appearance of             previous situations, we have decided that
justice.”    486 U.S. at 864 (internal              we should use our supervisory powers to
quotation marks and citation omitted).              fill a gap on important procedural or
The Supreme Court has never considered              ethical matters on a variety of issues.4
a situation such as the one before us.

       Regardless of the merits of                     4
                                                            See, e.g., Forbes v. Township of
Clemmons’ habeas petition, we find
                                                    Lower Merion, 313 F.3d 144, 149 (3d
dispositive that the District Court’s failure
                                                    Cir. 2002) (we “exercise our supervisory
to recuse has created an appearance of
                                                    power to require that future dispositions
impropriety that runs “the risk of
                                                    of a motion in which a party pleads
undermining the public’s confidence in the
                                                    qualified immunity include, at minimum,
judicial process.” Id.; see also Alexander
                                                    an identification of relevant factual
v. Primerica Holdings, Inc., 10 F.3d 155,
                                                    issues and an analysis of the law that
162 (3d Cir. 1993) (“[T]he public’s
                                                    justifies the ruling with respect to those

                                                7
The Supreme Court has explicitly                  499, 505-07 (1983) (referring to
recognized that the courts of appeals “have       supervisory authority of federal courts
broad powers of supervision” over federal         generally); id. at 513 n.1 (Stevens, J.,
proceedings. Bartone v. United States,            concurring) (same); United States v.
375 U.S. 52, 54 (1963) (per curiam); see          Payner, 447 U.S. 727, 734-36 & n.7
also United States v. Hasting, 461 U.S.           (1980).

                                                         Because of the absence of any
                                                  applicable statute, and in order to avoid the
issues.”); United States v. Eastern Med.
                                                  recurrence of this situation, we now
Billing, Inc., 230 F.3d 600, 607-13 (3d
                                                  exercise our supervisory power to require
Cir. 2000) (canvassing several
                                                  that each federal district court judge in this
supervisory power decisions in Third
                                                  circuit recuse himself or herself from
Circuit); Vadino v. A. Valey Eng’rs, 903
                                                  participating in a 28 U.S.C. § 2254 habeas
F.2d 253, 259 (3d Cir. 1990) (exercising
                                                  corpus petition of a defendant raising any
supervisory power “to require the district
                                                  issue concerning the trial or conviction
courts in this circuit to accompany grants
                                                  over which that judge presided in his or
of summary judgment hereafter with an
                                                  her former capacity as a state court judge.5
explanation sufficient to permit the
parties and this court to understand the
legal premise for the court's order.”);
                                                     5
Quality Prefabrication, Inc. v. Daniel J.                  Of course, nothing in this opinion,
Keating Co., 675 F.2d 77, 81 (3d Cir.             which relates only to the role of a federal
1982) (ruling that “a dismissal of a              judge pursuant to 28 U.S.C. § 2254, is
complaint with prejudice as a Rule 37             designed to apply to the role of a federal
sanction must be accompanied by some              judge under 28 U.S.C. § 2255. In fact,
articulation on the record of the court's         Rule 4(a) of the Rules Governing § 2255
resolution of the factual, legal, and             Habeas Proceedings for United States
discretionary issues presented”). In              District Courts directs that a habeas
particular, we have issued supervisory            petition “be presented promptly to the
rules on the issue of regarding the               judge of the district court who presided
appearance of judicial impropriety. See,          at the movant’s trial and sentenced him .
e.g., Alexander, 10 F.3d at 167                   . . .” In contrast to the position of a
(exercising supervisory power to reassign         federal judge reviewing a § 2255
ERISA case to a different district judge);        petition, who is effectively reconsidering
Haines v. Liggett Group, Inc., 975 F.2d           his rulings at the trial, a federal judge
81, 98 (3d Cir. 1992) (“[T]he appearance          reviewing a § 2254 petition cannot
of impartiality will be served only if an         reconsider the actions taken by a state
assignment to another judge is made, and          judge, even if s/he had been the state
we will, pursuant to our supervisory              judge. In his or her new capacity, s/he
power, so direct.”).                              would be reviewing the actions of

                                              8
We thus shall vacate the District Court’s
decision to deny Clemmons’ habeas
petition as well as his petition for
appointment of counsel6 and we will
remand with instructions that the case be
assigned to a different district court judge.




another court. The difference is
institutional rather than ethical. There is
no basis to apply the supervisory rule
enunciated here to the § 2255 situation.
   6
        Because we will vacate and
remand each of the District Court’s
decisions based on the possible
appearance of bias, we need not reach
the merits of Clemmons’ argument that
the District Court’s denial of his motion
for appointment of counsel was deficient
for failure to include a statement of
reasons.

                                                9
