     Case: 10-60896 Document: 00511497840 Page: 1 Date Filed: 06/03/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 3, 2011
                                     No. 10-60896
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MERLIN HILL,

                                                   Petitioner-Appellant

v.

STATE OF MISSISSIPPI; DALE CASKEY,

                                                   Respondents-Appellees


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                               USDC No. 1:10-CV-22


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Merlin Hill, Mississippi prisoner # R4779, moves for a certificate of
appealability (COA) to appeal from the judgment dismissing his 28 U.S.C. § 2254
habeas corpus application. He also moves for leave to proceed in forma pauperis
(IFP) on appeal.
       Hill contends, inter alia, that District Judge Aycock, who dismissed his
habeas application, should have recused herself because she previously was the



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-60896 Document: 00511497840 Page: 2 Date Filed: 06/03/2011

                                   No. 10-60896

state court judge who denied his application for state postconviction relief.
Judge Aycock evidently overlooked this fact in the district court proceeding.
      The federal recusal statute provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify [her]self in any proceeding
in which [her] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
Such a situation arises when a federal judge in a habeas case reviews the
validity of a decision in which she previously participated as a judge in state
court. See Clemons v. Wolfe, 377 F.3d 322, 327 (3d Cir. 2004). The statute
provides for waiver of the basis for disqualification after full disclosure, § 455(e),
but the Code of Conduct for United States Judges states that disqualification
based on a judge’s previous participation as a judge in the proceeding is not
waivable. Code of Conduct for United States Judges, Canon 3(c)(1)(e), 3(D). In
Hill’s case, the record does not reflect that he was given an opportunity to waive
the basis for disqualification, if a waiver even is legally possible. The judgment
of the district court is vacated and the case is remanded to the Chief Judge of the
Northern District of Mississippi for reassignment under the rules of that court.
      COA GRANTED; IFP GRANTED; VACATED AND REMANDED.




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