Opinions of the United
2004 Decisions States Court of Appeals for the Third Circuit
5-24-2004
Johnson v. Carroll Precedential or Non-Precedential: Precedential
Docket No. 03-2101
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PRECEDENTIAL Counsel for Appellant
IN THE UNITED STATES COURT OF Joseph M. Bernstein (Argued)
APPEALS 800 North King Street, Suite 302 FOR THE THIRD CIRCUIT Wilmington, DE 19801
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Counsel for Appellee
No. 03-2101 ____________
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OPINION OF THE COURT
RONALD N. JOHNSON ____________
v. ROSENN, Circuit Judge.
THOMAS J. CARROLL, Warden; This appeal raises an interesting ATTORNEY GENERAL OF question under the recent enactment of the THE STATE OF DELAWARE Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) pertaining to the Thomas Carroll, failure of a state judge to recuse himself Appellant because his impartiality might reasonably ____________ be questioned. A grand jury in Delaware indicted Thomas Carroll for the theft of Appeal from the United States District property valued in excess of $1000, Court possession of a deadly weapon by a person For the District of Delaware prohibited, and several other related D.C. No.: 02-cv-00562 crimes. After a trial to a jury, he was District Judge: Honorable Joseph J. convicted of the weapon charge and the Farnan, Jr., Chief Judge lesser included charge of aggravated ____________ menacing. He was acquitted of all other charges. He was sentenced to eighteen (Argued: February 24, 2004) years imprisonment as a habitual offender.
The State Supreme Court affirmed his Before: RENDELL, BARRY and conviction and sentence. Johnson v. State, ROSENN, Circuit Judges 797 A.2d 1206 (table), 2002 WL 714520 (Del. April 22, 2002).
(Filed May 24, 2004)
Without filing any post-conviction Thomas E. Brown (Argued) motion in the state court, Johnson filed a Office of Attorney General of Delaware petition for a writ of habeas corpus in the Department of Justice United States District Court for the District 820 North French Street Wilmington, DE 19801
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of Delaware under 28 U.S.C. § 2254(d). 1 prosecutor, at a social function at Liguori’s The District Court conditionally granted home. “As you both know Jim Liguori, if Carroll’s petition for habeas relief as to his you see him, he talks about cases all the sentence, concluding that there existed an time.” The judge informed counsel that appearance of bias on the part of the Liguori made a comment about Johnson sentencing judge. Johnson v. Carroll, 250 during their conversation. As related by F. Supp.2d 395 (D. Del. 2003). The the judge, Liguori commented that District Court ordered the State to grant Johnson was a “bad guy,” that he had Johnson a new sentencing hearing. The “threatened” Liguori and his family, and State timely appealed. In light of the that Liguori “wanted to see that justice was stringent provisions of AEDPA, we done.” The judge assured counsel that he reverse and direct the District Court to believed that Liguori’s comment would dismiss Johnson’s habeas petition. not have any impact on his view of the case or his pending sentencing decision.
I. A. Defense counsel at the time, Sandra Dean, a public defender, who had become The relevant facts regarding Johnson’s trial counsel mid-way through Johnson’s conviction and sentence are trial, voluntarily informed the judge of the undisputed. The charges set forth in the background inform ation re gard ing indictment stemmed from the alleged Johnson’s alleged threat to Liguori kidnaping of his estranged sixteen-year-old eighteen years before, in 1981. Liguori, daughter, Karen Vincent, on October 6, then a state prosecutor, prosecuted 1997. Johnson in an unrelated matter. Johnson, Immediately before sentencing having been convicted and imprisoned, Johnson following his conviction, the state sent a Christmas card to Liguori in 1981. court trial judge held a conference with The Christmas card read: “You had fun in both the prosecutor and defense counsel in ’81 and will be free in ’83.” Johnson his chambers. The judge voluntarily escaped from prison, and it was debated disclosed that he “had an out-of-court then whether he posed a threat, conversation” with James Liguori, a presumably to Liguori and his family. The Delaware attorney and former state judge told Dean that he had no knowledge of the background information that she had just related and commented that it perhaps 1 explained why Liguori made the comments The respondent-appellants are about Johnson.
Thomas Carroll, warden of the state prison where Johnson is jailed, and the Dean then informed the judge that Attorney General of the State of the local newspapers had reported the Delaware. To simplify reference, we purported threat at that time and that the refer to them as the State of Delaware.
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Public Defender’s Office had included the would request a different judge for the newspaper clippings among the documents pending sentencing. The judge concluded submitted to the court in relation to the conference by stating that he would not Johnson’s present trial. Dean assured the allow Liguori to be a witness at Johnson’s judge that Johnson’s 1981 Christmas card sentencing hearing. was part of “public record.” The judge and Dean both agreed that the purported B. threat was well documented and that the documents were all in the “whole file” Johnson obtained new counsel and earlier submitted to the court. appealed his conviction and sentence. As to Johnson’s sentence, the Delaware The state prosecutor, Robert Supreme Court rejected his claim that the O’Neill, in turn mentioned his own trial judge had erroneously failed to recuse “recollection” of Johnson’s purported himself sua sponte. The court analyzed the threat to Liguori and his family. He then issue first under the Delaware Judges’ told the judge that Liguori’s comment Code of Judicial Conduct and found the about Johnson’s character was relevant to situation was not one of those enumerated the court in meting out the sentence to him in the Code that would mandate recusal. because he was charged as a “habitual Johnson v. State, 2002 WL 714520, at *3. offender” under state law. He informed The court analyzed the issue then under a the judge further that the court should two-prong test set forth under its prior consider Johnson’s propensity for violence decisions. Id. (citing Stevenson v. State, and his entire criminal history in 782 A.2d 249, 255 (Del. 2001); Los v. determining the term of sentence. He also Los, 595 A.2d 381, 384 (Del. 1991)). told the judge that Liguori arguably could Under the subjective prong, the court be presented as a witness at Johnson’s noted the trial judge’s statement that “I sentencing hearing. don’t view [the contact] to have any impact on my view of the case or my Finally, in response to O’Neill’s decision with regard to sentencing,” and question as to whether she intended to file found it sufficient. Under the objective any motion regarding the ex parte prong, the court did not find any communication disclosed by the judge, “appearance of bias sufficient to cause Dean told the judge she had no such doubt as to the judge’s impartiality.” intention because the alleged incident was Specifically, the court observed that the “nothing new,” “a matter of record,” “[trial] judge did not engage in any active “happened a long time ago,” and the judge conduct demonstrating the appearance of had indicated that he would not give it impropriety.” Id. (emphasis added) “any undue weight.” Dean told the judge (distinguishing this case from Stevenson, also that she would discuss the matter with 782 A.2d at 251, 257 n.3 (finding Johnson and expressed doubt that he appearance of impropriety when a judge
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who had previous contact with a victim standard of review is a question of law affirmatively requested that the case be subject to review by this Court de novo. assigned to him)). The court observed Chadwick v. Janecka, 312 F.3d 597, 605 additionally that Johnson’s previous n.6 (3d Cir. 2002). counsel at trial admitted, and his new counsel on appeal did not deny, that the A. record in his case available to the trial AEDPA severely circumscribes a court had already contained a more federal habeas court’s review of a state detailed account of his alleged threat to court decision. AEDPA provides in Liguori. Id. relevant part:
The District Court issued an order An application for a writ of habeas corpus and opinion ruling against Johnson as to on behalf of a person in custody pursuant his conviction but in favor of him as to his to the judgment of a State court shall not sentence. Johnson v. Carroll, 250 F. be granted with respect to any claim that Supp.2d at 398. Specifically, the court was adjudicated on the merits in State agreed with Johnson that the trial court court proceedings unless the adjudication judge erroneously failed to recuse himself of the claim— sua sponte from sentencing Johnson (1) resulted in a decision that was contrary following his voluntary disclosure that he to, or involved an unreasonable application had received an out-of-court ex parte of, clearly established Federal law, as communication from a former prosecutor determined by the Supreme Court of the regarding Johnson. The court agreed that United States; or the failure to do so created an appearance (2) resulted in a decision that was based on of bias on the part of the judge in violation an unreasonable determination of the facts of Johnson’s due process rights under the in light of the evidence presented in the United States Constitution. State court proceeding.
II. 28 U.S.C. § 2254(d) (emphasis added).
It is not disputed that Johnson had The determination of what constitutes exhausted his state remedy prior to his “clearly established federal law” is a initiation of the underlying federal habeas “threshold question in § 2254 cases.” action. It is also not disputed that AEDPA Lockyer v. Andrade, 538 U.S. 63, 71 governs a federal court’s review of (2003). Johnson’s habeas action. The District Court had subject matter jurisdiction under The statutory phrase “clearly 28 U.S.C. § 2254. We have appellate established” is defined as follows: jurisdiction under 28 U.S.C. §§ 1291 and Section 2254(d)(1)’s “clearly established” 2253. The question of whether the District phrase refers to the holdings, as opposed to Court appropriately applied the AEDPA the dicta, of [the Supreme] Court’s
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decisions as of the time of the relevant clause requires the state court state-court decision. . . . In other words, decision to be more than incorrect “clearly established Federal law” under § or erroneous. The state court’s 2254(d)(1) is the governing legal principle application of clearly established or principles set forth by the Supreme l a w m u s t b e o b j e c t i v e ly Court at the time the state court renders its unreasonable. . . . It is not enough decision. that a federal habeas court, in its independent review of the legal Id. at 71-72 (citations omitted) (emphasis question, is left with a “firm added) (internal quotation marks omitted). conviction” that the state court was “erroneous.” [The Supreme Court The statutory phrase “contrary to” has] held precisely the opposite:
is defined as follows: Under § 2254 (d)(1)’s [A] state court decision is contrary “unreasonable application” clause, to [the Supreme Court’s] clearly then, a federal habeas court may established precedent if the state not issue the writ simply because court applies a rule that contradicts that court concludes in its the governing law set forth in [the independent judgment that the Supreme Court’s] cases or if the relevant state-co urt dec ision state court confronts a set of facts applied clearly established federal that are materially law erroneously or incorrectly. indistinguishable from a decision Rather, that application must be of [the] Court and nevertheless objectively unreasonable. arrives at a result different from [the Court’s] precedent. Id. at 75-76 (citations omitted) (emphases added) (internal quotation marks omitted).
Id. at 73 (internal quotation marks omitted). B.
The District Court acknowledged The statutory phrase “unreasonable that it was bound by AEDPA’s stringent application” is defined as follows: standard in reviewing the merits of [U]nder the “unreasonable Johnson’s habeas claims. The court application” clause, a federal agreed with Johnson that the Delaware habeas court may grant the writ if Supreme Court’s decision was “contrary to the state court identifies the correct or an unreasonable application of federal governing legal principle from [the law and an unreasonable application of the Supreme] Court’s decisions but facts in light of the evidence.” Johnson v. unreasonably applies that principle Carroll, 250 F. Supp. 2d at 403. to the facts of the prisoner’s case. The “unreasonable application” The District Court and Johnson
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relied on three United States Supreme the judge, it did not consider the Court decisions, In re Murchison, 349 U.S. reaction of the reasonable observer 133 (1955), Liljeberg v. Health Services and the related risks of injustice to Acquisition Corp., 486 U.S. 847 (1988), the parties and undermining the and Liteky v. United States, 510 U.S. 540 public’s confidence in the judicial (1994). 2 The Court agreed with Johnson process that result from the that the trial judge’s failure to recuse continued participation of a judge himself sua sponte gave rise to an in a proceeding despite the judge’s appearance of bias and that the appearance appearance of bias. See Stevenson of bias violated his due process rights. [v. State], 782 A.2d [249, 258 (Del. The Court wrote: 2001) (en banc)]. Thus, the Court concludes that the Delaware In this case, it appears to the Court Supreme Court decision was not that the Delaware Supreme Court entirely consistent with federal law limited its analysis to the active and was not a reasonable conduct of the trial judge, an application of the facts in light of analysis which is inconsistent with the evidence. the concept of an appearance of bias. In addition, the Court did not Johnson v. Carroll, 250 F. Supp. 2d at 404 consider the impact of Liguori’s (emphases added). comments that “he wanted to see that justice was done.” In these C. circumstances, Liguori’s ex parte Johnson has not asserted, and there “sentencing recommendation” is no evidence, that the trial judge could well create a situation in harbored any actual bias toward him. He which a reasonable observer would argued, and the District Court agreed, that q u estion the trial j u d g e ’s the ex parte communication created an im pa rtia lity. Because th e appearance of bias and that the appearance Delaware Supreme Court limited of bias violated his due process rights its analysis to the active conduct of under the United States Constitution.
Under the plain language of § 2 2254(d), as well as the United States The District Court also relied on Supreme Court’s case law, we are Stevenson v. State, 782 A.2d 249 (Del.
presented only with one narrow issue:
2001), to support its conclusion.
whether the Supreme Court has ever held Because § 2254(d)(1) expressly limits in any of its decisions existing at the time federal law jurisprudence to decisions by of the District Court’s judgment, including the United States Supreme Court, the the three cases relied on by Johnson and state court case will be disregarded in our the District Court, that an appearance of review.
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bias on the part of a state court judge, the facts,” as expressed by the District without more, violates the Due Process Court. The state court adjudicated Clause of the United States Constitution. Johnson’s appeal of his sentence under the We are not, and cannot be, concerned with Delaware Judges’ Code of Judicial the issues of whether the trial judge should Conduct and its own case law regarding have recused himself sua sponte or the recusal standard for Delaware judges. whether the ex parte communication at issue was sufficient to constitute an As conceded by the District Court appearance of bias. We assume that there in its later decision to grant the state’s was an appearance of bias. motion for an enlargement of the stay of its judgment pending the resolution of this We note first that the District Court appeal, its earlier decision granting habeas has significantly changed the statutory relief “was based on an analogy to language of § 2254(d) in its presentation Supreme Court cases related to the issue of of the issue before it. The phrase “clearly recusal under 28 U.S.C. § 455 [for federal established” was noticeably absent in the judges] and not on direct precedent related court’s presentation of the § 2254(d)(1) to the trial judge’s appearance of bias prong, and the court substituted the under the Due Process Clause.” Johnson s t a tu t o r y p h r a s e “ u n r e a s o n a b l e v. Carroll, No. 02-562 - JJF, 2003 WL determination of the facts in light of the 22136302 at *1 (D.Del. Sept. 10, 2003). evidence” with the phrase “unreasonable (emphases adde d.) Th is belate d application of the facts in light of the realization was tantamount to an admission evidence” in its presentation of the § that none of the Supreme Court decisions 2254(d)(2) prong. See Johnson v. Carroll, relied on by the District Court in its earlier 250 F. Supp. 2d at 404. Because the decision “clearly established” that mere AEDPA standard is strict, the Court’s appearance of bias, without more, violates omission and deviation were erroneous the Due Process Clause. Our own reading and distorted its analysis. of the cases shows that they do not stand for any such holding, and we are not aware We note also that despite its of any other Supreme Court decision that presentation of the § 2254(d)(2) prong, the has so held. District Court did not analyze the Delaware Supreme Court’s decision under The Supreme Court held in In re that prong. The reason is obvious: the Murchison, 349 U.S. 133 (1955), that it decision of the state appellate court did was unconstitutional for the same state not, and could not, involve any judge, after a full hearing in open court, to “determination of facts” regarding the punish contempt, previously committed undisputed ex parte communication at before him while acting as a one-man issue. Nor did the state court’s decision “judge-grand jury” permitted under then involve any “unreasonable application of Michigan laws. “It would be very strange
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if our system of law permitted a judge to adjudicate a case where he has an interest act as grand jury and then try the very in the outcome, does not stand for the persons accused as a result of his conclusion, drawn by the District Court investigations.” 349 U.S. at 137. The and Johnson, that a judge with an Court concluded that “no man can be a appearance of bias, without more, is judge in his own case and no man is required to recuse himself sua sponte permitted to try cases where he has an under the Due Process Clause. Johnson interest in the outcome.” Id. at 136. That has not alleged, and there is no evidence, conclusion was based on “the basic that the trial judge here had a personal requirement of due process” that the interest in the outcome of the sentence. defendant receive “[a] fair trial in a fair tribunal.” Id. The Court commented that The Supreme Court held in Liteky although fairness certainly required “an v. United States, 510 U.S. 540 (1994), that absence of actual bias,” “our system of law recusal under 28 U.S.C. § 455(a) was has always endeavored to prevent even the subject to the limitation known as the probability of unfairness.” Id. The Court “extrajudicial source” doctrine or factor. acknowledged that its “stringent rule may That statute requires a federal judge to sometimes bar trial by judges who have no “disqualify himself in any proceeding in actual bias and who would do their very which his impartiality might reasonably be best to weigh the scales of justice equally questioned.” Specifically, the Court between contending parties.” Id. concluded that apart from surrounding However, “to perform its high function in comments or accompanying opinion, the best way justice must satisfy the evidencing such “deep-seated favoritism appearance of justice.” Id. (internal or antagonism” as would make fair quotation marks omitted). judgment impossible, judicial rulings alone “cannot possibly show reliance upon an The District Court and Johnson extrajudicial source.” Id. at 555. In relied on the above language to support addition, opinions formed by the judge on their conclusion that an appearance of bias the basis of facts introduced or events violated the Due Process Clause. In re occurring during current or p rior Murchison does not stand for that broad proceedings are not grounds for a recusal conclusion. Instead, its holding, as motion unless they display a similar degree opposed to dicta, is confined to the basic of favoritism or antagonism. Id. constitutional principle of prohibiting a judge from adjudicating a case where he The Liteky holding is limited to the was also an investigator for the interpretation of the recusal standard under government. The rest of the language § 455(a) for federal judges. Facially, it quoted in the preceding paragraph merely does not stand for the conclusion, drawn explains the holding. Even a generalized by the District Court and Johnson, that reading of the holding, that a judge cannot appearance of bias alone on the part of a
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state judge makes that judge’s decision that the university had just approved subject to federal habeas review under § reopening negotiations with the defendant. 2254(d)(1). To the extent that the holding is relevant, it undercuts, rather than Following two days of trial, the supports, Johnson’s claim. Johnson has judge immediately announced his intention not alleged, and there is no evidence, that to rule for the defendant. After the trial, the trial judge harbored any deep-seated but before issuing the verdict, the judge antagonism toward him. It is not disputed did not attend a university board meeting, that Johnson’s alleged threat to Liguori which discussed the terms of a sale was documented in the records available to agreement with the defendant. The the trial judge prior to the sentencing. proposed agreement provided that the Under Liteky, an opinion formed by a agreement would be void if the defendant federal judge, which the judge here was failed to retain the disputed ownership of not, on the basis of facts introduced at the corporation. The judge did not read trial, would not be grounds for a recusal the minutes of that meeting until he had motion, even had one been filed by rendered judgment for the defendant. Johnson.
Under the circumstances of that Similarly, the Supreme Court’s case, the Supreme Court concluded that holding in Liljeberg v. Health Services the judge’s participation in the case Acquisition Corp., 486 U.S. 847 (1988), is created a strong appearance of impropriety limited to an interpretation of the recusal and plainly violated § 455(a), even if he standard for federal judges under § 455(a), lacked actual knowledge of th e as it related to the specific facts of the university’s interest in the outcome of the case. In that case, a federal judge dispute involving the defendant. Id. at conducted a bench trial involving a dispute 859. Specifically, the Court held that the over the ownership of a corporation purpose of the statute, to promote public formed by the defendant in that action for confidence in the integrity of the judicial the purpose of constructing and operating process, did not depend on whether the a hospital. The judge issued a verdict in judge actually knew of the facts creating favor of the defendant. The judge had an appearance of impropriety, so long as been a member of the board of a university the public might reasonably believe that he and regularly attended its meetings. At the knew.3 Id. at 859-60. The Court time of the trial involving the defendant, the judge knew that the defendant had negotiated extensively with the university 3 The Court pointed to four facts that regarding the purchase of a piece of real might cause an objective observer to estate property owned by the university for question the judge’s impartiality and the construction of the proposed hospital.
justify the Court’s decision to affirm the The judge also knew at the time of the trial vacating of the judgment in favor of the
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concluded that the facts of that case warranted the application of § 455(a) because the violation was “neither defendant under Federal Rule of Civil insubstantial nor excusable.” Id. at 867.
Procedure 60(b)(6). First, in view of the Although the judge did not know of his financial importance of the defendant’s “fiduciary interest in the litigation, he project to the university, it was certainly should have known.” Id. at 867-
“remarkable” that the judge, who had 68.
regularly attended the meetings for the university board for a decade, It is obvious that the Liljeberg “completely forgot” about the Court’s holding is limited to an university’s interest in having a hospital interpretation of §455(a) governing recusal constructed on its property. Id. at 865.
of federal judges and based on the specific Second, it was an “unfortunate facts of that case, where the judge’s coincidence” that although the judge had putative fiduciary interest in the outcome regularly attended the university board’s of the litigation, as being a member of the meetings, he did not attend that particular university board, conflicted with his post-trial meeting that discussed and judicial obligation to be free of actual and approved the terms of the sale agreement perceived impartiality. Even though the with the defendant. The minutes of that Court mentioned that the concern for the meeting were mailed to the judge four integrity of judges had “constitutional days before he issued judgment; if he had dimensions,” id. at 865 n.12 (citing Aetna opened the envelope upon receipt, he Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 would have been under a duty to recuse (1986) (citing Murchison, 349 U.S. at himself before he rendered judgment. Id.
136)), its holding was not based on the at 866. Third, it was “remarkable,” and Due Process Clause. Liljeberg neither “quite inexcusable,” that the judge failed holds nor suggests that an appearance of to recuse himself after he had finally read bias on the part of a federal judge, without the minutes. “A full disclosure at that more, violates the Due Process Clause.
time would have completely removed any basis for questioning the judge’s In contrast to the federal judge in impartiality and would have made it possible for a different judge to decide whether the interests—and appearance—of justice would have been vacate, the judge still did not served by a retrial.” Id. By his silence, acknowledge that he had known about the judge deprived the plaintiff of a basis the university’s interest both shortly for making a timely motion for a new before and shortly after the trial. Nor did trial and also deprived it of an issue on he indicate an awareness of a duty to direct appeal. Id. at 867. Finally, when recuse himself after he had read the the plaintiff’s counsel filed its motion to minutes. Id.
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Liljeberg, the state trial judge here constitutional grounds under 28 U.S.C. § voluntarily disclosed the ex parte 2255 (regarding collateral review of a communication that he had received from federal sentence) unless “an appearance of a non-party prior to sentencing Johnson, impropriety . . . rose to the level of providing him with a basis for making a fundamental defect resulting in a complete timely motion for recusal. In contrast to miscarriage of justice.” Id. (internal Liljeberg, this case is devoid of any quotation marks omitted). evidence showing a potential conflict of interest involving fiduciary or pecuniary The Seventh Circuit in Del Vecchio interest. v. Illinois Dept. of Corrections, 31 F.3d 1363 (7th Cir. 1994) (en banc), expressly In conclusion, none of the Supreme rejected the view that an appearance of Court cases relied on by the District Court, bias amounted to a due process violation. and we are aware of none, has held or The court acknowledged that “the due clearly established that an appearance of process clause sometimes requires a judge bias on the part of a judge, without more, to recuse himself without a showing of violates the Due Process Clause. Because actual bias, where a sufficient motive to be the position taken by the District Court is biased exists.” Id. at 1371 (citing Tumey not supported by any United States v. Ohio, 273 U.S. 510, 532 (1927); In re Supreme Court case law to date, the Murchison, 349 U.S. 133, 136 (1955); District Court’s grant of habeas relief is Aetna Life Ins. Co. v. Lavoie, 475 U.S. reversible error under AEDPA. 813, 825 (1986)). “Despite the Supreme Court’s broad pronouncements about ‘the D. appearance of justice,’” the Del Vecchio Our sister Courts of Appeals have court concluded that it “cannot answer the rejected arguments similar to those made due process question simply by concluding by Johnson. The Second Circuit that it may have looked bad for [a state concluded that § 455(a)’s “appearance of trial judge] to preside at trial.” Del impropriety standard” is not “mandated by Vecchio, 31 F.3d at 1371. the Due Process Clause.” Hardy v. United States, 878 F.2d 94, 97 (2d Cir. 1989). The court specifically rejected the The Fifth Circuit observed that “section view that “th e Supre me C ourt’s 455 and the Due Process Clause are not ‘appearance of justice’ language from coterminous.” United States v. Couch, Murchison and Aetna as holding that the 896 F.2d 78, 81 (5th Cir. 1990). due process clause requires judges to “[C]onduct violative of section 455 may recuse themselves based solely on not [necessarily] constitute a due process appearances.” Id. The court concluded, as deficiency.” Id. (citations omitted). The do we, that those Supreme Court decisions Couch court held that a federal sentence “present no such holding. . . .” Id. The was not open to collateral review on court observed further:
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The Supreme Court has never rested the agree with the conclusions of our sister vaunted principle of due process on Courts of Appeals. something as subjective and transitory as appearance. Instead, the Supreme Court III. simply uses the “appearance of justice” Because the Supreme Court’s case language to make the point that judges law has not held, not even in dicta, let sometimes must recuse themselves when alone “clearly established,” that the mere they face possible temptations to be appearance of bias on the part of a state biased, even when they exhibit no actual trial judge, without more, violates the Due bias against a party or a cause. Process Clause, the District Court’s judgment based on that erroneous view In short, bad appearances alone do must be reversed under AEDPA. The case not require disqualification. . . . When the will be remanded to the District Court with S u p r em e Co urt talks a bou t the directions to dismiss Johnson’s petition for “appearance of justice,” it is not saying a writ of habeas corpus. that bad appearances alone require disqualification; rather, it is saying that when a judge is faced with circumstances that present “some [actual] incentive to this question by presuming the honesty and find one way or the other” or “a real integrity of those serving as adjudicators.
possibility of bias,” a court need not Disqualification is required only when the examine whether the judge actually was biasing influence is strong enough to biased. . . . Absent the incentive for bias, overcome that presumption, that is, when however, disqualification is not required the influence is so strong that we may despite bad appearance.
presume actual bias. This occurs in situations . . . in which experience teaches Id. at 1371-72 (citations omitted). 4 We that the possibility of actual bias is too high to be constitutionally tolerable. A court must be convinced that a particular 4 After an extensive survey of the influence, under a realistic appraisal of Supreme Court decisions involving psychological tendencies and human disqualifications of judges, the Del weakness, poses such a risk of actual bias Vecchio court summarized the standard or prejudgment that the practice must be for disqualifications as follows: forbidden if the guarantee of due process is to be adequately implemented.
The question is not whether some possible temptation to be biased exists; instead, the question is, when does a biasing influence DelVecchio, 31 F.3d at 1375 (citations require disqualification? Consistent with omitted) (internal quotation marks the common law, we begin in answering omitted).