In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1398
JAMES P. HARRISON,
Petitioner-Appellee,
v.
DANIEL R. McBRIDE,
Superintendent,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 99 C 933—Sarah Evans Barker, Judge.
____________
ARGUED MAY 5, 2005—DECIDED OCTOBER 27, 2005
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. James Harrison was convicted of the
murders of Stacy Forsee and her two children. He was
sentenced to death. After exhausting his state remedies in
the courts of Indiana, he petitioned for a writ of habeas
corpus in the district court. See 28 U.S.C. § 2254(a). The court
granted the writ. The State of Indiana appeals that decision.
2 No. 04-1398
See 28 U.S.C. § 1291. We now affirm the judgment of the
district court for the reasons set forth in the following
opinion.
I
BACKGROUND
A. Facts
A complete recitation of the facts of this case and of the
rulings that led to Mr. Harrison’s habeas petition are set
forth in the district court’s very thorough opinion. See
Harrison v. Anderson, 300 F. Supp. 2d 690 (S.D. Ind. 2004).
We recount here only those matters pertinent to the issue
raised on appeal.
On January 17, 1989, the bodies of 20-year old Stacy
Forsee, and her children Tia (3 1/2 years) and Jordan (21
months) were found among the ruins of the family’s charred
home. Forsee had been stabbed; the children had died as a
result of the fire. After an investigation that lasted more
than two years, Mr. Harrison was charged with arson, with
the knowing murders of Stacy and Tia, and with the felony
murder of Jordan.
Charges against Mr. Harrison were filed in Posey Circuit
Court. Counsel was appointed for Mr. Harrison, and trial
was set for January 6, 1992, before Judge James Redwine.
1. Change-of-Judge Motion
During the course of preparations for Mr. Harrison’s trial,
defense counsel learned through depositions that, not long
before Forsee was killed, she had told officers of the Indiana
State Police (“ISP”) that she feared for her life. More specifi-
No. 04-1398 3
cally, she told Detectives Gary Gilbert and Larry Rhoades
that she was being followed by a man in a suspicious van,
that she had information about drug activity in Posey
County involving her ex-boyfriend, Charles Hanmore, and
another individual, Roger Greathouse, and that Judge
Redwine had been present at Greathouse’s home when
drugs were being unloaded on Greathouse’s property.
Based upon this information, one defense theory was that
members of the local drug community, rather than Mr.
Harrison, had targeted Forsee because of her knowledge of
drug activity.
In July of 1991, Judge Redwine was informed by the
parties that his name had been mentioned “in conjunction
with drug information” that Forsee had provided to the ISP.
Judge Redwine indicated that he would not withdraw from
the case.1 Subsequently, on September 16, 1991, the defense
moved for a change of venue from the judge. The motion
alleged, among other matters, that Judge Redwine could not
rule objectively on the admissibility of evidence pertaining
to Forsee’s fear of Greathouse because of the possibility that
the Judge’s name might be mentioned during the presenta-
tion of the evidence.
On the same day that the motion for a change of judge
was filed, Judge Redwine telephoned Greathouse and
shared with him the allegations in the motion. The Judge
requested that Greathouse attend the scheduled hearing on
that motion. See State Ct. Vol. 23 at 721.
1
In August, Judge Redwine granted the prosecution’s oral
request, over Mr. Harrison’s objections, to advance his trial by
two months.
4 No. 04-1398
The following evidence was presented during the hearing.
Detective Rhoades testified that, in 1988, Forsee had re-
ported to the police that Judge Redwine was a person who
was aware of drug activity. A tape recording of this inter-
view had been made, but subsequently had been misplaced.
Detective Rhoades also testified that he could not investi-
gate allegations involving public officials without first
securing approval from the Superintendent of the ISP.
Additionally, Detective Rhoades stated that someone
recently had made a request to conduct an investigation. Id.
at 561-63. Prior to dismissing Detective Rhoades as a
witness, Judge Redwine engaged in the following colloquy:
The Court: To your knowledge, has [Forsee]
ever told anyone that I was at a
party at Roger Greathouse’s house.
Officer Rhoades: Not to my knowledge.
The Court: To your knowledge, has she ever
told anyone that I had any knowl-
edge of drug trafficking in this
county.
Officer Rhoades: Just again, as I testified earlier, the
information that she said Chuck
Hanmore provided her with that
you were aware of semi loads of
marijuana.
The Court: And do you have any information
that would corroborate any of those
statements in anyway?
Officer Rhoades: No, I do not.
...
No. 04-1398 5
The Court: And at that time did you indicate to
them [defense counsel] that Stacy
Foresee [sic] had told you that I was
at some party where drugs were?
Officer Rhoades: No, I did not.
The Court: You have never told anyone that she
told you that?
Officer Rhoades: No.
The Court: And she did not tell you that?
Officer Rhoades: No, she did not.
The Court: Do you have any reason at all to be-
lieve I was at a party where drugs
were?
Officer Rhoades: No, I don’t.
Id. at 568-70.
Detective Gilbert, also of the ISP, was present during the
interview with Stacy Forsee and testified at the change-of-
judge hearing. During Detective Gilbert’s testimony, Judge
Redwine again interjected clarifications and questions into
the examination:
Defense Counsel: And in that interview did she tell
you she had been to the FBI?
Officer Gilbert: It is my understanding that she did,
or the FBI was mentioned some time
during that interview.
Defense Counsel: And did she mention to you that
after she had gone to the FBI this
van had started following her?
The Court: She didn’t say she had gone to the
FBI. The officer said that she had
6 No. 04-1398
just said that, or it was mentioned
in the interview. Please make your
questions specific. This is a very
important matter, Mr. Warrum. I
don’t want you confusing the facts.
Id. at 575. Two pages later in the transcript, Judge Redwine
stated: “She has not said, the witness has not said that she
went to the FBI. The witness said he doesn’t know for sure
if she had been or said she was going.” Id. at 577-78.
Judge Redwine took an active role in other aspects of the
hearing as well. Judge Redwine admitted from the bench
that the allegations contained in the motion “reflect[] upon
the credibility of this Court,” and he reproved defense
counsel for “act[ing] so irresponsibly” by not investigating
the allegations more thoroughly. Id. at 610-12. He took
judicial notice of records from a criminal case involving
Forsee’s brother, over which he had presided, to establish
that a factual basis supported the guilty plea. Id. at 627-28.
He ordered records in Forsee’s son’s paternity action to be
made public and played the tape of the paternity hearing to
show that he had not been biased against Forsee. Id. at 628-
29. Additionally, Judge Redwine called Forsee’s attorney
(Ms. McFaddin-Higgins) in the paternity action as a witness
to establish that the proceeding had been fair. Id. at 636-37,
657, 659. Judge Redwine had Forsee’s mother, brother and
former boyfriend (Charles Hanmore) sit in the courtroom
and listen to McFaddin-Higgins’ testimony, despite a
witness separation order. Id. at 629-30. He called Greathouse
as a witness to testify that he had never known the Judge to
be involved in drug activity. Id. at 715-24. Finally, Judge
Redwine asked defense counsel if they were alleging that he
had any motive to or did kill Forsee. Id. at 604-06. He stated
to defense counsel: “These are serious allegations reflecting
No. 04-1398 7
on the credibility of the court. . . . You have brought a lot of
people’s names up and dragged them through the mud.
You have probably ruined a lot of people’s lives and
reputations . . . . ” Id. at 610. Judge Redwine ultimately
denied the change-of-judge motion.
After Judge Redwine denied that request, Mr. Harrison
filed a mandamus action in the Supreme Court of Indiana to
compel a change of judge; Mr. Harrison filed a brief in
support of that motion, the transcript of the hearing on the
change-of-judge motion, and other record materials in
support of his action. See R.34, Ex.A; State Ct. Vols. 34 & 35.
The Supreme Court of Indiana denied relief without
opinion.
2. Other Rulings by the State Court
The expanded record also reflects a series of pre-trial
rulings that followed the denial of the change-of-judge
motion. According to Mr. Harrison, these rulings evidence
Judge Redwine’s efforts to hinder the defense. They in-
cluded: (1) refusing to grant the defense a continuance to
respond to the State’s late disclosure of inculpatory DNA
test results; (2) granting the State’s motion in limine—even
though defense counsel indicated that he was not ready to
respond—to prohibit defense counsel from making any
allegation that a third party had killed Forsee; (3) excluding
defense witnesses disclosed after the deadline, including
Hanmore and Greathouse; and (4) requiring defense counsel
to share with the prosecutor materials that defense counsel
had obtained from a death penalty defense conference,
while not imposing a similar requirement on the prosecutor.
See Harrison, 300 F. Supp. 2d at 710-12.
Mr. Harrison’s murder trial began on November 6, 1991.
There was evidence admitted that, before the fire trucks
8 No. 04-1398
arrived, Harrison had been observed near the scene of the
fire on the night of the murders. There also was evidence
that he had purchased kerosene days before the murders
and that a flammable liquid had started the fire. Finally,
evidence was presented that Mr. Harrison had informed
fellow inmates in a Maryland jail that he had committed the
crimes. The jury acquitted Mr. Harrison of Forsee’s murder,
but found him guilty of the remaining counts. The jury then
recommended that Mr. Harrison be sentenced to death for
the murders of both of Forsee’s children. The trial court
imposed the death sentence for both counts. After trial,
Judge Redwine refused to compensate defense counsel for
their work on the change-of-judge motion and on the
mandamus action. He characterized these filings as a
“completely false and meritless action for the sole purpose
of delaying this trial.” Id. at 712. Finally, defense counsel’s
regular appointments from the Posey Circuit Court ended
after Mr. Harrison’s trial. Id.
The convictions were affirmed on direct appeal to the
Supreme Court of Indiana, see Harrison v. State, 644 N.E.2d
1243 (Ind. 1995); however, the Supreme Court of Indiana
remanded to the trial court for the preparation of a capital
sentencing order. The trial court complied with the remand,
and the imposition of the death sentence was affirmed by
the state supreme court. See Harrison v. State, 659 N.E.2d 480
(Ind. 1995). The state trial court subsequently denied Mr.
Harrison’s petition for state post-conviction relief; the
Supreme Court of Indiana affirmed the denial of relief. See
Harrison v. State, 707 N.E.2d 767 (Ind. 1999).
B. District Court Proceedings
Mr. Harrison’s federal habeas petition raises eleven
No. 04-1398 9
claims; the district court addressed only his judicial bias
claim. Id. at 696. That claim essentially alleged:
[T]he circumstances surrounding Judge Redwine’s
involvement in the trial of this matter create[d] a
constitutionally intolerable risk of judicial bias such that
the likelihood of bias or its appearance is so substantial
as to create a conclusive presumption of actual bias. He
also assert[ed] that Judge Redwine was actually biased
against him and his lawyers.
R.23 at 52. In reply, the Government contended that Mr.
Harrison had defaulted procedurally on the judicial bias
claim for two reasons: (1) he had not presented fairly this
contention to the state courts; and (2) the Supreme Court of
Indiana adjudicated the claim on an independent and
adequate state procedural ground. The district court rejected
both contentions. It first held that Mr. Harrison had fairly
presented the claim:
The due process argument was explicitly presented in
Harrison’s mandamus petition to the Indiana Supreme
Court at the outset of his prosecution. The argument
was renewed in Harrison’s direct appeal. The Indiana
Supreme Court acknowledged that Harrison was
seeking relief based on his claim that he was denied a
fair and impartial trial because of the denial of his
motion for a change of venue from the judge. The
Indiana Supreme Court concluded Harrison “state(d) no
facts in his brief . . . , nor can we find any in the record,
that indicate that there was an undisputed claim of
prejudice or that the trial court expressed an opinion on
the merits of the controversy.” Harrison v. State, 644
N.E.2d 1243, 1249 (Ind. 1995). Whether correct in that
assessment of the claim, the Indiana Supreme Court
clearly recognized Harrison’s claim of judicial bias
10 No. 04-1398
precisely as it has been reasserted here.
Harrison, 300 F. Supp. 2d at 699-700 (emphasis in original).
Secondly, the district court held that the Supreme Court
of Indiana did not adjudicate the judicial bias claim on an
independent and adequate state ground:
No procedural rule was cited by the Indiana Supreme
Court either in its Order denying Harrison’s mandamus
petition or in Harrison’s direct appeal on this point. Our
interpretation of the Indiana Supreme Court action in
rejecting the claim in Harrison’s direct appeal was
simply to explain that it had found no facts establishing
Harrison’s claim of prejudice. This was a decision on the
merits of the claim as the Indiana Supreme Court
perceived it; it was not a decision based on a failure to
comply with some procedural requirement of state law.
Id. at 700 (emphasis in original).
The district court then proceeded to the merits of the
judicial bias claim. It determined that the Supreme Court of
Indiana’s treatment of the judicial bias claim in both the
mandamus action and in Mr. Harrison’s direct appeal was
not entitled to the level of deference usually afforded state
court judgments under 28 U.S.C. § 2254(d)(1). The district
court first determined that, because the state supreme court
had reviewed Judge Redwine’s denial of a change of judge
for an abuse of discretion (a state law standard), it had not
reached the merits of the federal constitutional claim,
despite an opportunity to do so. Id. at 701. The district court
alternatively held that, even if the Supreme Court of Indiana
had decided the federal claim of judicial bias on the merits,
§ 2254(d) deference did not apply because the state court’s
decision was “contrary to” the precedent of the Supreme
Court of the United States:
No. 04-1398 11
Not only did the Indiana Supreme Court fail to articu-
late the proper federal test, but it articulated a
test—abuse of discretion, prejudice to the defen-
dant—wholly incompatible with the nature of structural
error, for which prejudice is not required, Neder [v. United
States, 527 U.S. 1, 14 (1999)] . . . . Where structural error
is implicated, and judicial bias is one of the narrow class
of constitutional violations in which structural error is
implicated, harmless error (the obverse of prejudice, in
the present context) is not an option. Tyson v. Trigg, 50
F.3d 436, 442 (7th Cir. 1995). . . .
Id. at 702-03 (emphasis in original).2
The district court then independently reviewed the
expanded record and held that:
[A]ctual bias has been demonstrated not by judicial
rulings, but by Judge Redwine’s personal participation
in the development of the proceedings beginning on
September 26, 1991. Apart from his rulings, Judge
Redwine’s statements and actions preceding trial, at the
change of judge hearing, during trial and in the letter
2
The second prong of 28 U.S.C. § 2254(d)(1) provides that a writ
of habeas corpus may not issue unless the state court’s adjudica-
tion was an unreasonable application of federal law. The Su-
preme Court has explained that a “state-court decision that
correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case certainly
would qualify as a decision ‘involv[ing] an unreasonable
application of . . . clearly established Federal law.’ ” Williams v.
Taylor, 529 U.S. 362, 407-08 (2000) (quoting 28 U.S.C. § 2254(d)(1)).
Accordingly, the district court held that this prong does not apply
in this case, because, at the least, the Supreme Court of Indiana
did not “correctly identif[y] the governing legal rule.” Harrison v.
Anderson, 300 F. Supp. 2d 690, 703 n.4 (S.D. Ind. 2004).
12 No. 04-1398
denying certain attorneys fees, illustrate an unmistak-
able bias infecting James Harrison’s trial and depriving
him of a fair trial. Judge Redwine revealed a personal
interest in protecting his name and the judiciary in
Posey County, an interest he specifically admitted.
Apparently, because of that interest, he denied Harri-
son’s motion for change of judge, and thereafter made
rulings calculated to remove any mention or implication
of his role in Harrison’s defense. As to that defense, as
it was explained in the context of the motion for change
of judge, Judge Redwine’s refusal to acknowledge the
relevance and the probative value of the information
pertaining to the possible motives of others to kill Stacy
Forsee persisted, despite “repeated and lucid attempts
by [Harrison’s] lawyer to dispel it.” United States v.
Santos, 201 F.3d 953, 962 (7th Cir. 2000). When the
allegations supporting the change of judge request are
viewed from Judge Redwine’s perspective, “[n]o one so
cruelly slandered is likely to maintain calm detachment
necessary for fair adjudication.” Mayberry v. Pennsylva-
nia, 400 U.S. 455, 465 (1971). Harrison is correct in
arguing that this record leaves one “with an abiding
impression that the trial judge permitted himself to
become personally embroiled” with the issues. Ungar v.
Sarafite, 376 U.S. 575, 585 (1964).
Id. at 714 (citations and parallel citations omitted). The
district court accordingly granted habeas relief. The State
timely appealed.
II
ANALYSIS
No. 04-1398 13
A. Procedural Default
The State first submits that the district court erroneously
concluded that Mr. Harrison had presented fairly the issue
of judicial bias to the Supreme Court of Indiana during its
direct review of the case. As we noted earlier, the district
court looked to Ellsworth v. Levenhagen, 248 F.3d 634 (7th Cir.
2001), and concluded that the Supreme Court of Indiana
“clearly [had] recognized Harrison’s claim of judicial bias
precisely as it has been reasserted here.” Harrison, 300 F.
Supp. 2d at 700.
1. Baldwin v. Reese
The State does not address directly any infirmities in the
district court’s analysis; instead, it maintains that the
intervening decision of the Supreme Court of the United
States in Baldwin v. Reese, 541 U.S. 28 (2004), establishes that
“more” is required to preserve a claim for habeas review
than we had articulated in Ellsworth. The State also argues
that Mr. Harrison’s brief to the Supreme Court of Indiana
does not satisfy Reese’s heightened “fair presentment”
requirement. Neither of these arguments are persuasive.
In Ellsworth, we considered whether the plaintiff properly
had presented his Sixth Amendment claim to the state
courts prior to seeking habeas relief. We began our analysis
by explaining, in general terms, the “fair presentment”
requirement:
“Initially, the state courts must have had a ‘fair opportu-
nity’ to consider a question of constitutional import
before federal collateral review on that question is
appropriate.” Kurzawa [v. Jordan, 146 F.3d 435, 441 (7th
Cir. 1998)] (citing Burgin v. Broglin, 900 F.2d 990, 996
14 No. 04-1398
(7th Cir. 1990)). “A ‘fair presentment’ of a petitioner’s
claims requires that a petitioner give state courts ‘a
meaningful opportunity to pass upon the substance of
the claims [petitioner] later presses in federal court.’ ”
Spreitzer v. Schomig, 219 F.3d 639, 645 (7th Cir. 2000)
(quoting Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.
1999)). To satisfy that requirement, an inmate must
present “both the operative facts and the legal princi-
ples that control each claim to the state judiciary.”
Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001).
Ellsworth, 248 F.3d at 639. We then set forth the four-part
test used to determine “whether a petitioner has fairly
presented a claim to the state judiciary”:
1) whether the petitioner relied on federal cases that
engage in a constitutional analysis; 2) whether the
petitioner relied on state cases which apply a constitu-
tional analysis to similar facts; 3) whether the peti-
tioner framed the claim in terms so particular as to call
to mind a specific constitutional right; and 4) whether
the petitioner alleged a pattern of facts that is well
within the mainstream of constitutional litigation.
Id. We further explained that, at its core, the task of the
habeas court was to “assess[], in concrete, practical terms,
whether the state court was sufficiently alerted to the
federal constitutional nature of the issue to permit it to
resolve that issue on a federal basis.” Id. (internal quotation
marks and citations omitted).
This language closely resembles the introductory lan-
guage employed by the Supreme Court in Reese:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, thereby
giving the State the opportunity to pass upon and
No. 04-1398 15
correct alleged violations of its prisoners’ federal rights.
To provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court
with powers of discretionary review), thereby alerting
that court to the federal nature of the claim.
541 U.S. at 29 (internal quotation marks and citations
omitted). After articulating the general parameters of the
“fair presentment” requirement, the Court reviewed the
nature of petitioner Reese’s claims in state court:
In relevant part, the petition [to the state supreme court]
asserted that Reese had received ineffective assistance
of both trial court and appellate court counsel. The
petitioner added that his imprisonment is in violation of
[Oregon state law]. It said that his trial counsel’s con-
duct violated several provisions of the Federal Constitu-
tion. But it did not say that his separate appellate ineffec-
tive assistance claim violated federal law.
Id. at 29-30 (emphasis in original; internal quotation marks
and citations omitted). A federal district court had deter-
mined that Reese’s failure to fairly present his claims of
ineffective assistance of appellate counsel to the state
supreme court barred habeas relief.
A divided panel of the Ninth Circuit reversed:
Although the majority [of the Ninth Circuit panel]
apparently believed that Reese’s petition itself did not
alert the Oregon Supreme Court to the federal nature of
the appellate “ineffective assistance” claim, it did not
find that fact determinative. Rather, it found that Reese
had satisfied the “fair presentation” requirement
because the justices of the Oregon Supreme Court had
had “the opportunity to read . . . the lower [Oregon]
16 No. 04-1398
court decision claimed to be in error before deciding
whether to grant discretionary review.” Had they read the
opinion of the lower state trial court, the majority added,
the justices would have, or should have, realized that
Reese’s claim rested upon federal law.
Id. at 30 (quoting Baldwin v. Reese, 282 F.3d 1184, 1193-94
(9th Cir. 2002) (emphasis in original)).
The Supreme Court then addressed whether the Ninth
Circuit “correctly interpreted the ‘fair presentation’ require-
ment.” Id. The Court began “by assuming that Reese’s
petition by itself did not properly alert the Oregon Supreme
Court to the federal nature of Reese’s claim.” Id. at 30. In
other words, the Supreme Court assumed that Reese’s
petition to the state supreme court did not meet existing
standards for “fair presentment”—such as those articulated
by this court in Ellsworth. The Court then concluded that,
based on this assumption, “Reese failed to meet the ‘fair
presentation’ standard, and the Ninth Circuit was wrong to
hold the contrary.” Id. at 30-31. The Court, therefore, did
nothing to disturb our understanding of what is necessary
to “fairly present” a claim to the state supreme court in a
petition for habeas relief.
The Court in Reese then went on to explain why the
“opportunity” to read the lower state court opinions, which
fully laid out Reese’s federal constitutional claims, was not
a substitute for fairly presenting the federal claim within the
petition itself. The Court stated that an
opportunity means that the judges could have read them.
But to say that a petitioner “fairly presents” a federal
claim when an appellate judge can discover that claim
only by reading lower court opinions in the case is to
say that those judges must read the lower court opin-
ions—for otherwise they would forfeit the State’s
No. 04-1398 17
opportunity to decide that federal claim in the first
instance. In our view, federal habeas corpus law does
not impose such a requirement.
Id. at 31 (emphasis in original).
We see little similarity between the procedural situation
before the Supreme Court in Reese and the one presented
here. In Reese, the petitioner never articulated the federal
basis of his claim before the state supreme court. The
Supreme Court of Oregon could have discovered that Reese
was claiming a federal constitutional violation only by
reading the lower state court opinions. Here, by contrast,
Mr. Harrison clearly identified the federal basis of his judge-
bias claim in his brief on direct appeal to the Supreme Court
of Indiana. See Dye v. Hofbauer, No. 04-8384, 2005 WL
2494290 (U.S. Oct. 11, 2005) (holding that brief to state
supreme court, which identifies the federal basis of a claim,
preserves that claim for habeas review). Specifically, among
the issues that he identified for the state supreme court, Mr.
Harrison stated:
Issue II - The trial court denied the defense motions
for . . . change of judge . . . . The denial of these motions
constitute erred [sic] under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitu-
tion and Article I, Sections 12, 13, 16, 18 and 23 of the
Indiana Constitution.
R.34, Ex.B at 12. The federal nature of these claims was
reiterated in the argument section of his brief. See id. at 16.
With respect to the change-of-judge motion itself, Mr.
Harrison stated the following in his brief:
B. MOTION FOR CHANGE OF JUDGE. Defendant
filed a motion for change of judge and a hearing was
held September 24th, 1991 at which time the trial court
18 No. 04-1398
denied the motion. (R. 494 through 915). The Indiana
Supreme Court has already heard this issue and denied
the motion prior to trial after a hearing in the Supreme
Court on October 31st 1991. The issue is now raised for
purposes of preserving the same for further appeal.
Harrison would contend he was denied a fair and
impartial trial by jury by not having a change of venue
from the judge.
Id. at 17.
Finally, Mr. Harrison’s direct appeal to the Supreme Court
of Indiana referenced the mandamus action that he previ-
ously had pursued in that court—a mandamus action in
which the federal constitutional claim had been raised and
argued.3 Specifically, the brief in support of Mr. Harrison’s
mandamus action stated:
The fundamental principle of due process and due
course of law require that the Defendant have a Judge
impartial and free of the appearance of impropriety,
particularly is this true in a case in which the death
3
At oral argument, the State also argued that the mandamus was
an inappropriate procedural mechanism for raising a federal due
process claim with respect to judge bias. It provided this court
with supplemental authority, Robinson v. Grant Super. Ct. No. 1,
471 N.E.2d 302, 303 (Ind. 1984), for the proposition that “[t]he
appellate process is adequate to correct any abuse of the respon-
dent court’s discretion in denying [a] motion for change of
judge.” We do not rest our determination that Mr. Harrison fairly
presented his claim to the Supreme Court of Indiana only on the
basis of the arguments raised in his mandamus petition, and
therefore the nature of the mandamus action under Indiana law
does not dictate our analysis.
No. 04-1398 19
penalty has been requested.
...
The Defendant James P. Harrison is entitled to a fair
trial with an impartial jury and an impartial judge. The
Constitution of Indiana, Article I, Sections 12 and 13,
and the Constitution of the United States, Fifth, Sixth
and Fourteenth Amendments.
...
If the trial court is incorrect in its ruling on the change
of judge and this Court finds a denial of rights under
the due process or the due course of law clause of the
State and Federal Constitutions, all procedural rules
that would prevent their consideration or leave them to
the discretion of the trial court must yield to the funda-
mental principle of due process and due course of law.
R.34, Ex.A at 14, 21-22 (emphasis in original).
Thus, the Supreme Court of Indiana did not have to read
through all of the lower court opinions to understand that
Mr. Harrison was raising a federal claim. The federal nature
of the claim was articulated in his brief before the Supreme
Court of Indiana, and, in support of that claim, Mr. Harrison
explicitly referred the state supreme court to the areas in the
record supporting his claim—as well as to prior briefing of
the issue in the Supreme Court of Indiana itself. These factors
clearly distinguish the present situation from Reese, and we
conclude that Reese does not govern the petition presently
before us.
2. Other Procedural Default Claims
The State makes three other cursory arguments with
respect to procedural default. First, the State submits that
20 No. 04-1398
“[to] fairly present any claim of judicial bias, Harrison was
required to provide argument and authority for his allega-
tion that Judge Redwine was biased at trial. His rote refer-
ence on direct appeal to his pretrial pleading was tempo-
rally incapable of doing so . . . .” Appellant’s Br. at
16 (emphasis in original). The State cites no authority for its
proposition that federal constitutional claims of judicial bias
must be rooted in actions exhibited at trial. Surely prejudice
or interest of a judge may become apparent prior to trial and
require the removal of that judicial officer in order to satisfy
the requirements of due process. See Anderson v. Sheppard,
856 F.2d 741, 745 (6th Cir. 1988) (“Bias or prejudice on the
part of a judge may exhibit itself prior to the trial by acts or
statements on his part.” (internal quotation marks and
citations omitted)).4
The State also contends that, “while the Indiana Supreme
Court did not expressly find waiver, its disposition of this
claim makes clear that it was based on Harrison’s failure to
adequately apprise the court of the factual and legal basis
for his claim.” Appellant’s Br. at 15. However, we consis-
4
This statement has another possible interpretation: Although
Mr. Harrison fairly presented a claim of judge bias, that claim
relied only upon Judge Redwine’s actions during the mandamus
action; Mr. Harrison, therefore, cannot rely upon subsequent
actions of Judge Redwine in establishing a bias claim. Because
our substantive decision relies only on those actions taken by
Judge Redwine prior to the change-of-judge motion and during
the hearing on that motion, we do not have to define with
precision which factual allegations—beyond those involving the
change-of-judge motion—were fairly presented to the state
supreme court. As we later point out, however, the Judge’s
actions subsequent to the denial of the change-of-judge motion
certainly confirm that he had a personal stake in the proceedings.
No. 04-1398 21
tently have held that “[a]n adequate and independent state
ground bars federal habeas review of constitutional claims
only if ‘the last state court rendering judgment in the case
“clearly and expressly” states that its judgment rests on the
state procedural bar.’ ” Gomez v. Jaimet, 350 F.3d 673, 677
(7th Cir. 2003) (quoting Harris v. Reed, 489 U.S. 255, 263
(1989)). Thus, the State’s concession that an express finding
of waiver is not present dooms this argument.
Lastly, the State asserts, without lengthy discussion, that
our case law requires a petitioner to present both the factual
and legal bases of the federal claim in order to meet the “fair
presentment” requirement. See Appellant’s Br. at 17 (citing
Verdin v. O’Leary, 972 F.2d 1467, 1481 (7th Cir. 1992)). There
is no question that “fair presentment” requires that the state
court be apprised of the “operative facts” as well as “the
substance of the federal claim.” Verdin, 972 F.2d at 1474
(emphasis in original). Mr. Harrison satisfied these require-
ments. As noted above, the substance of the federal
claim—that his trial was presided over by a biased judge
and that this bias violated federal constitutional guarantees
of due process—was presented in his brief on direct appeal
to the Supreme Court of Indiana. Similarly, Mr. Harrison
explicitly referred the state supreme court to the specific
area of the record that supported his federal claim—a record
with which the Supreme Court of Indiana already was
familiar by virtue of the mandamus action. Consequently,
Mr. Harrison has satisfied the fair presentment requirement.
B. Judge Bias
1. Standard of Review
Mr. Harrison filed his habeas petition after enactment of
the Antiterrorism and Effective Death Penalty Act
22 No. 04-1398
(“AEDPA”), and, therefore, we are bound by AEDPA’s
restrictions on federal review of state court rulings. Under
AEDPA, a writ of habeas corpus may be granted only if Mr.
Harrison demonstrates that the state court’s adjudication of
the claim was contrary to, or an unreasonable application of,
federal law as determined by the Supreme Court of the
United States, see 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 403-04 (2000), or if the decision was premised
on an unreasonable determination of facts, see 28 U.S.C. §
2254(d)(2).
This standard, however, applies only to claims which
have been adjudicated on the merits. See Braun v. Powell, 227
F.3d 908, 916-17 (7th Cir. 2000). In the absence of an adjudi-
cation on the merits, we employ the general standard as set
forth in 28 U.S.C. § 2243, which requires us to “dispose of
the matter as law and justice require.” See Braun, 227 F.3d at
916-17. Of course, even when the AEDPA standard does not
apply—either because the state court’s opinion was unrea-
sonable or because the state judiciary did not address the
constitutional claim—“[a] prisoner still must establish an
entitlement to the relief he seeks.” Aleman v. Sternes, 320
F.3d 687, 690 (7th Cir. 2003). According to 28 U.S.C. §
2254(a), “a district court shall entertain an application for a
writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.”
2. Characterization of the State-Court Adjudication
With respect to Mr. Harrison’s judge bias/due process
claim, the Supreme Court of Indiana stated:
Defendant contends that he was denied a fair and
impartial trial because of the denial of his motion for a
No. 04-1398 23
change of venue from judge. A ruling on a change of
judge in a criminal proceeding is within the trial court’s
discretion. We review such a ruling only for a clear
abuse of discretion. Here, defendant states no facts in
his brief before this court, nor can we find any in the
record, that indicate that there was an undisputed claim
of prejudice or that the trial court expressed an opinion
on the merits of the controversy.
Harrison v. State, 644 N.E.2d 1243, 1249 (Ind. 1995) (citing
Stidham v. State, 637 N.E.2d 140, 142 (Ind. 1994), and Har-
rington v. State, 584 N.E.2d 558, 561 (Ind. 1992)).
In reviewing the state court’s decision, the district court
held that AEDPA deference was inapplicable for two
reasons. First, the district court explained,
it is evident from its own words that the Indiana Su-
preme Court did not understand Harrison’s claim of
judicial bias as presenting a question of federal constitu-
tional import, and in consequence it cannot be con-
cluded that the Indiana Supreme Court reached the
merits of the federal claim which Harrison presents in
his habeas petition.
Harrison, 300 F. Supp. 2d at 701. Alternatively, the district
court concluded that the state supreme court’s adjudication
was an unreasonable application of clearly established law.
The district court explained:
The decisions of the Indiana Supreme Court on the
question of judicial bias are contrary to Supreme Court
precedent . . . . This conclusion rests on (1) the Indiana
Supreme Court’s use of an “abuse of discretion” stan-
dard, and (2) the Indiana Supreme Court’s reference to
the absence of prejudice in the trial record, juxtaposed
with the proper federal standard of “a fair trial in a fair
tribunal before a judge with no actual bias against the
24 No. 04-1398
defendant or interest in the outcome of his particular
case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).
Harrison, 300 F. Supp. 2d at 702 (parallel citations omitted).
The State now challenges both of these determinations. It
maintains that the district court’s conclusions cannot be
reconciled with the Supreme Court’s decision in Early v.
Packer, 537 U.S. 3 (2002). We do not believe Early supports
the State’s argument.
In Early, the Ninth Circuit had granted habeas relief to a
petitioner on a jury-coercion claim; it had done so without
applying AEDPA deference because it had determined that
the state court’s adjudication of the claim was “contrary to
established federal law.” Id. at 8. In reviewing the Ninth
Circuit’s ruling, the Supreme Court first observed that there
was no question that § 2254 applied: “The jury-coercion
claim in respondent’s habeas petition is the same claim
rejected on the merits in his direct appeal to the state appellate
court, and the Ninth Circuit correctly recognized that §
2254(d) was therefore applicable.” Id. (emphasis added).5
The Supreme Court then went on to address the Ninth
Circuit’s determination that the state court’s adjudication
was unreasonable:
[T]he Ninth Circuit observed that the state court “failed
to cite . . . any federal law, much less the controlling
Supreme Court precedents.” [Packer v. Hill, 291 F.3d 569,
578 (9th Cir. 2002).] If this meant to suggest that such
citation was required, it was in error. A state-court
5
Early v. Packer, 537 U.S. 3 (2002), therefore, does not directly
address the district court’s first determination in the present
case—that the state court failed to adjudicate the federal claim on
the merits.
No. 04-1398 25
decision is “contrary to” our clearly established prece-
dents if it “applies a rule that contradicts the governing
law set forth in our cases” or if it “confronts a set of
facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a
result different from our precedent.” Williams v. Taylor,
529 U.S. 362, 405-406 (2000). Avoiding these pitfalls
does not require citation of our cases—indeed, it does
not even require awareness of our cases, so long as
neither the reasoning nor the result of the state-court
decision contradicts them. The Ninth Circuit’s disap-
proval of the Court of Appeal’s failure to cite this
Court’s cases is especially puzzling since the state court
cited instead decisions from the California Supreme
Court that impose even greater restrictions for the
avoidance of potentially coercive jury instructions.
Ellis, 537 U.S. at 8 (parallel citations omitted; emphasis in
original). In sum, Ellis holds that a state-court holding is not
contrary to clearly established federal law if it merely fails
to cite Supreme Court precedent, as long as “neither the
reasoning nor the result of the state-court decision contra-
dicts them.” Id.
The State contends that the holding of Ellis is applicable
here because the state court’s application of the abuse of
discretion standard in reviewing the judge-bias claim did
not contradict the reasoning of, or the result in, any constitu-
tional judge bias cases. We cannot accept this view for two
reasons. First, as we noted earlier, Ellis does not speak in
any terms to the district court’s first reason for rejecting
AEDPA deference—that the state court failed to adjudicate
the federal constitutional claim on the merits.
More fundamentally, the Supreme Court of Indiana’s
adjudication of Mr. Harrison’s judge bias claim was con-
26 No. 04-1398
trary to “clearly established Federal law, as set forth by the
Supreme Court.” 28 U.S.C. § 2254(d)(1). The Supreme Court
of Indiana reviewed the due process claim only for a “clear
abuse of discretion.” Harrison, 644 N.E.2d at 1249. In its
view, that abuse of discretion only occurs when there is “an
undisputed claim of prejudice” or when “the trial court
expresse[s] an opinion on the merits of the controversy.” Id.
However, the due process protection, as guaranteed by the
federal Constitution, indisputably is much broader. The
Supreme Court has stated unequivocally:
A fair trial in a fair tribunal is a basic requirement of
due process. Fairness of course requires an absence of
actual bias in the trial of cases. But our system of law
has always endeavored to prevent even the probability
of unfairness. To this end no man can be a judge in his
own case and no man is permitted to try cases where he
has an interest in the outcome. That interest cannot be
defined with precision. Circumstances and relationships
must be considered. This Court has said, however, that
“Every procedure which would offer a possible tempta-
tion to the average man as a judge . . . not to hold the balance
nice, clear, and true between the State and the accused denies
the latter due process of law.” Tumey v. State of Ohio, 273
U.S. 510, 532 [(1927)]. Such a stringent rule may some-
times 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. But to
perform its high function in the best way “justice must
satisfy the appearance of justice.” Offutt v. United States,
348 U.S. 11, 14 [(1954)].
In re Murchison, 349 U.S. 133, 136 (1955) (emphasis added;
parallel citations omitted); see also Franklin v. McCaughtry,
398 F.3d 955, 960-61 (7th Cir. 2005). This clear holding of the
Supreme Court of the United States cannot be squared with
No. 04-1398 27
the view of the Supreme Court of Indiana—that the man-
date of the federal Due Process Clause is satisfied as long as
there is no “undisputed claim of prejudice” or an expression
by the trial court of “an opinion on the merits of the
controversy.” In short, in determining whether the trial
court abused its discretion in denying the change-of-judge
motion, the Supreme Court of Indiana employed an unrea-
sonable view of the applicable federal standard as estab-
lished by the Supreme Court of the United States.6
6
In support of its argument that the State’s abuse-of-discretion
review is appropriate under federal law, the State points to Tezak
v. United States, 256 F.3d 702 (7th Cir. 2001). Tezak, however, did
not involve review of a constitutional claim of judicial bias; it
involved a motion made pursuant to 28 U.S.C. § 144, which
states:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal bias
or prejudice either against him or in favor of an adverse
party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not less
than ten days before the beginning of the term at which the
proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good
faith.
In determining whether to grant or deny a motion under § 144,
“[t]he court must assume the truth of the factual assertions even
if it ‘knows them to be false.’ ” Tezak, 256 F.3d at 717 (quoting
(continued...)
28 No. 04-1398
3. Judge Bias
The general principles concerning a defendant’s due
process right to an impartial judge are clear in the jurispru-
dence of the Supreme Court. “A fair trial in a fair tribunal is
a basic requirement of due process.” In re Murchison, 349
U.S. at 136. Although this right encompasses “an absence of
actual bias,” the contours of this right cannot be defined
with “precision.” Id. Indeed, the Supreme Court has made
clear that, when the presiding judge is not impartial, there
is a “structural defect[] in the constitution of the trial
mechanism” that “def[ies] analysis by ‘harmless error’
standards.” Arizona v. Fulminante, 499 U.S. 279, 309 (1991);
see also Edwards v. Balisok, 520 U.S. 641, 647 (1997); Franklin,
398 F.3d at 960-61 (citing Bracy v. Schomig, 286 F.3d 406, 414
(7th Cir. 2002) (en banc)). For instance, due process is
6
(...continued)
United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985)).
Under § 144, therefore, the ruling judge has little discretion
whether to grant the motion; if the affidavit supports a claim of
bias—even if the judge knows that the facts averred therein are
false—the motion must be granted. Because the district court has
only a limited range of discretion, any action taken outside of that
discretion necessarily will constitute an “abuse” of that discre-
tion. The abuse of discretion standard set forth in Tezak, therefore,
bears little resemblance to the truly deferential standard applied
by the Supreme Court of Indiana in the present case.
Finally, even if Tezak and Balistrieri established a truly deferen-
tial abuse of discretion standard, neither case sets forth “clearly
established Federal law, as determined by the Supreme Court,” the
statutory standard according to which we must evaluate the state
court’s adjudication. 28 U.S.C. § 2254(d)(1) (emphasis added).
No. 04-1398 29
violated when a judge presides over a case in which he has
a direct, pecuniary interest in the outcome. Tumey v. State of
Ohio, 273 U.S. 510, 523 (1927). Due process also may be
offended if a judge sits in judgment on a contempt citation
and uses that proceeding to “give vent to personal spleen or
respond to a personal grievance.” Offutt v. United States, 348
U.S. 11, 14 (1954). In sum, due process is violated when a
judge presides in a case that “would offer a possible tempta-
tion to the average man . . . to forget the burden of proof
required to convict the defendant” or would “lead him not
to hold the balance nice, clear, and true between the state
and the accused.” Tumey, 273 U.S. at 532.
We now turn to the events surrounding the change-of-
judge motion in the state court. Although it is true that,
“[o]rdinarily, we presume that public officials have properly
discharged their official duties,” Bracy v. Gramley, 520 U.S.
899, 909 (1997) (internal quotation marks and citations
omitted), this presumption is overcome by the accusation at
issue in this case and by Judge Redwine’s response to it. As
recounted by the district court:
It was . . . evident throughout the hearing on the motion
for change of judge that Harrison’s attorneys were
going to present a defense based on evidence that there
were people other than Harrison of whom Stacy Forsee
was in fear, that Chuck Hanmore and Roger Greathouse
were among these other people, that the basis of this
theory consisted of Stacy Forsee’s knowledge of illicit
drugs at the Greathouse property, and that Judge
Redwine’s name would come up in the course of this
evidentiary presentation. Knowing that the trial court
would have to rule on the admissibility of this evidence,
Harrison had sought a change of judge. Harrison’s
attorneys characterized Judge Redwine’s presiding over
30 No. 04-1398
this trial as being “in the nature of a conflict.”
Harrison, 300 F. Supp. 2d at 710.
Counsel for Mr. Harrison attempted, at several points in
the hearing, to explain this conflict to Judge Redwine; rather
than evaluate this submission, Judge Redwine repeatedly
refused “to acknowledge the relevance and the probative
value of the information pertaining to the possible motives
of others to kill Stacy Forsee.” Id. at 714; see generally State
Ct. Vol. 23 at 600-08. Indeed, Judge Redwine went so far as
to inform counsel that “[y]our theory doesn’t make sense.”
Id. at 611.
Moreover, through his actions, Judge Redwine exhibited
the very interest that defense counsel had identified. Judge
Redwine demonstrated that he was willing to forsake the
role of impartial arbiter and instead assume the role of
advocate in establishing that he had no involvement with
Greathouse and Hanmore. Having been apprised of the
nature of the alleged conflict of interest, Judge Redwine
transformed the hearing on the change-of-judge motion into
a proceeding to vindicate “the credibility of this Court.” Id.
at 610. By way of example only, the following actions of
Judge Redwine support this conclusion: (1) contacting, on
an ex parte basis, Roger Greathouse on the day the motion
for change of judge was filed for the purpose of securing
Greathouse’s testimony at the change- of-judge hearing; (2)
questioning the ISP Detectives regarding the nature of
Forsee’s allegations against him; (3) taking judicial notice of
criminal records with respect to John Forsee, the victim’s
brother; (4) making public certain records from the paternity
action involving Forsee’s son for the purpose of establishing
that Judge Redwine harbored no prejudice against Stacy
Forsee; (5) eliciting testimony from the attorney who
represented Stacy Forsee in the paternity action to establish
No. 04-1398 31
that there was no reason for Forsee to be upset with Judge
Redwine; (6) questioning Forsee’s mother, Gloria, as to
whether she had any reason to believe that he would not be
fair to both sides in this case; and (7) stating “unequivo-
cally” on the record that
I have never been to Roger Greathouse’s house, never in
my life. I have never been to party to any where, at any
time where cocaine was under any circumstances. I
have never seen a truckload of drugs any where, even
in the cases I tried as a Prosecutor, a County Judge, and
a Circuit Judge, and a Defense Attorney.
Id. at 610. Indeed, Judge Redwine’s active participation in
the hearing and his statements on the record demonstrate
precisely the bias that Mr. Harrison’s counsel believed
would infect the trial—Judge Redwine’s fear that evidence
might connect him to individuals involved in the drug trade
thereby tainting, or worse ruining, his judicial career. The
district court was eminently correct when it concluded that
[t]his is a case in which actual bias has been demon-
strated not by judicial rulings, but by Judge Redwine’s
personal participation in the development of the pro-
ceedings beginning on September 26, 1991. Apart from
his rulings, Judge Redwine’s statements and actions
preceding trial, [and] at the change of judge hearing,[7]
. . . illustrate an unmistakable bias infecting James
Harrison’s trial and depriving him of a fair trial. Judge
Redwine revealed a personal interest in protecting his
7
The district court rested its actual bias determination on Judge
Redwine’s actions during the hearing on the change-of-judge
motion as well as subsequent rulings and actions that followed
the hearing. We limit our review to the actions surrounding the
change-of-judge motion. See supra note 4.
32 No. 04-1398
name and the judiciary in Posey County, an interest he
specifically admitted.
Harrison, 300 F. Supp. 2d at 714 (footnote and parallel
citations omitted). Judge Redwine used the change-of-judge
hearing to “give vent to personal spleen [and] respond to a
personal grievance.” Offutt, 348 U.S. at 14. He abandoned
the role of “an impartial officer directing the judicial process
of truth seeking and invaded the role of an advocate.”
United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir. 1989).
His desire to vindicate his name directed his actions and
clouded his reasoning; the judge “ ’bec[ame] personally
embroiled with the petitioner.’ ” Jones v. Luebbers, 359 F.3d
1005, 1014 (8th Cir. 2004) (quoting Offutt, 348 U.S. at 17).8
8
Although Judge Redwine’s actions with respect to the change-
of-judge motion are sufficient to establish bias, we note that, prior
to trial, Judge Redwine did render two evidentiary rulings that
involved some of the evidence elicited at the change-of-judge
hearing:
* Judge Redwine held a hearing (with defense counsel on the
phone) on the State’s motion in limine and granted it even
though defense counsel indicated that they were still reading
the cases cited by the State. Through this ruling, Judge
Redwine ordered defense counsel not to mention directly or
by inference in the presence of the panel, the jury panel, that
the defense were alleging that anyone else could have or may
have been a suspect in the case without first seeking permis-
sion of the court outside the presence of the jury.
...
* Judge Redwine entered an order that excluded defense
witnesses disclosed after October 1, 1991. This date was just
five calendar days after his ruling on Harrison’s motion for
change of judge. The defense witness list included the names
(continued...)
No. 04-1398 33
Mr. Harrison did not receive a trial by a judge free from
actual bias. His rights under the Due Process Clause were
violated, and he has met his burden of establishing that he
is in custody in violation of the Constitution of the United
States.
Conclusion
For the foregoing reasons, the judgment of the district
court granting the writ of habeas corpus is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
8
(...continued)
of Roger Greathouse, Charles Hanmore, and Joe “Tattoo.”
300 F. Supp. 2d at 711 (citations omitted). Thus, just as Mr.
Harrison’s attorney had predicted during the change-of-judge
hearing, Judge Redwine was called upon “to rule on the Motions
with respect to whether the Prosecution’s hearsay is admissible,
and whether the Defense’s hearsay is admissible” and to deter-
mine whether defense counsel would be allowed to “counteract”
evidence of the victim’s fear “with certain evidence that there are
other people who are involved that had a reason or a motive to
kill her.” State Ct. Vol. 23 at 600, 603.
USCA-02-C-0072—10-27-05