Clemmons v. Wolfe

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Precedential or Non-Precedential: Precedential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 Ҥ 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