Buntion v. Quarterman

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

FILED
April 11, 2008

No. 06-70024 Charles R. Fulbruge III
Clerk

CARL WAYNE BUNTION,

Petitioner-Appellee,
v.

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Carl Wayne Buntion was convicted of capital murder and sentenced to
death in 1991. The district court granted Buntion conditional habeas relief on
his claim of judicial bias. The State appeals the district court’s grant of
conditional habeas relief. Bound by the strictures of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214 (1996), we VACATE the district court’s grant of conditional habeas relief.
Habeas relief is DENIED.
 No. 06-70024

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial and Direct Appeal
At about 7:45 p.m. on June 27, 1990, Houston Police Officer James Irby
was on motorcycle patrol when he stopped a car for a minor traffic violation.
After parking his motorcycle, Irby approached the driver’s side of the car and
spoke briefly with the driver, who had already exited the vehicle. Irby and the
driver, still conversing, walked toward the rear of the car. Irby then walked
back to the driver’s side of the car, looked in the car, and spoke briefly with
Buntion, who was the only passenger. Irby then returned to the rear of the car,
where he continued speaking with the driver. Buntion then exited the car from
the passenger’s side. Irby motioned to Buntion to get back in the car, but
Buntion proceeded toward Irby. When he was about five feet from Irby, he
raised a long-barrel revolver with both hands and fired a shot into Irby’s
forehead. Irby died almost instantly. The police arrested Buntion later that
day.
On June 28, 1990, Buntion was indicted for the capital murder of a peace
officer. Judge William Harmon of the 178th District Court for Harris County
presided over the trial, appointing three local criminal defense attorneys, Phillip
Scardino, Allen Tanner, and John Keirnan, to represent Buntion. Based on the
“unprecedented” amount of publicity Buntion’s trial was receiving, Judge
Harmon granted a change of venue, moving the trial to Gillespie County.
Voir dire began in early November 1990, and was apparently a very slow
process; by December 6, 1990, the parties had only selected eight jurors. During
the voir dire proceedings, the defense at one point ran out of peremptory
challenges. Judge Harmon then granted the defense fifty additional peremptory
challenges, an action that the prosecution challenged with a bill of exceptions.
The next day, Judge Harmon reversed himself, withdrawing the remaining

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additional challenges and granting the defense only four more. The defense
objected to the change.
On December 12, 1990, based on Judge Harmon’s comments, behavior, and
rulings during voir dire, the defense filed its first recusal motion. Specifically,
Buntion alleged that: Judge Harmon made an off-the-record statement in open
court that he was “doing God’s work to see that defendant Buntion gets
executed;” Judge Harmon criticized the Texas Criminal Court of Appeals
(“TCCA”) decision in Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990) (en
banc) relating to the presentation of mitigating evidence in death penalty cases;
and Judge Harmon acted capriciously in withdrawing the fifty additional
peremptory challenges. Buntion also raised additional claims that are not
relevant to this appeal.
In a recusal hearing before Judge Ables of the 216th District Court, Judge
Harmon admitted that he made the comment that he was doing “God’s work” in
seeing the defendant executed but claimed that everyone except Buntion realized
that it was a joke. He also stated that his criticism of the Gribble decision was
related to his belief that the opinion provided a lack of guidance to trial judges.
Finally, Judge Harmon testified that while he had an opinion as to what the
outcome of the case would be, he would not let this prediction affect his trial
rulings. Judge Ables denied the recusal motion.
The court, still in jury selection, recessed from December 19, 1990, until
January 7, 1991. On Christmas Eve, Judge Harmon called Scardino and told
him that he could no longer represent Buntion. The dismissal of defense counsel
was widely reported in the Texas media, with Judge Harmon making statements
to the press that he believed defense counsel Scardino was attempting to derail
the proceedings. On December 30, 1990, Judge Harmon again contacted the
media, saying that Scardino would not be removed as Buntion’s counsel. Judge
Harmon made this decision after a state prosecutor and one of Buntion’s other

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attorneys visited him at home and presented him with a TCCA decision
prohibiting the arbitrary removal of counsel. The judge stated that he was still
convinced that Scardino was attempting to “sabotage” the trial.
When the court reconvened on January 7, 1991, all of the jurors except for
the alternates had been selected. Defense counsel requested that, in light of the
intense media attention given to the trial during the recess, the jurors be
questioned regarding their exposure to the reports. Judge Harmon allowed
questioning of those two jurors who indicated that they were aware of the
attempted removal of Scardino. Neither of these jurors were removed, and the
alternates were chosen.
On January 8, 1991, the defense again filed a motion to recuse Judge
Harmon and for a mistrial. This recusal motion was based on the granting and
withdrawal of the peremptory strikes, the “God’s work” comment, and the
attempted removal of Scardino, along with other bases not relevant to this
appeal. The defense motion also alleged that Judge Harmon placed a postcard
depicting Judge Roy Bean, an infamous Texas “hanging judge,” on the bench
during portions of jury selection. Judge Harmon had altered the message on the
postcard to read “Judge Bill Harmon: Law West of the Perdernales.” Judge
Jordan of the 198th District Court presided over the hearing on the recusal
motion.
During this hearing, Judge Harmon admitted to contacting the Harris
County District Attorney’s office to discuss the peremptory challenges. He
stated that he had contacted the office “on numerous occasions” when he had a
legal question, but that he had only “briefly” discussed the issue of the
peremptory strikes with the office. He admitted that he placed the Judge Roy
Bean postcard on the bench during the voir dire process, but he did not believe
that any prospective jurors saw the postcard. He did not state why he placed the
postcard on the bench.

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Defense counsel Keirnan also testified about an ex parte meeting between
the judge and defense counsel Tanner one night at a convenience store. All three
of Buntion’s lawyers drove to a convenience store around midnight. After
Kiernan and Scardino had left, Judge Harmon approached Tanner and
accompanied him back to his hotel room. At this point in the hearing, because
Kiernan was testifying, the judge stopped the testimony because of the hearsay
nature of relating the discussion between Tanner and Judge Harmon. Buntion
alleges that Judge Harmon told Tanner that he would accuse the defense
attorneys of possessing drugs if they continued to challenge his behavior. Judge
Harmon admitted that he accompanied Tanner to his hotel room but denied
making any kind of threats. Judge Jordan denied the recusal motion.
The trial began on January 14, 1991. The guilt/innocence phase of the
trial lasted until January 24, 1991. At some point during the trial, Buntion
alleges that a sheriff in the courtroom told a juror wearing a suit that the juror
was “dressed to kill.” This comment was not objected to at the time it was made.
The jury found Buntion guilty of capital murder. After listening to the
evidence and testimony during the punishment phase of the trial, the jury made
the requisite findings on the special issues to sentence Buntion to death. The
defense filed post-trial motions, including one seeking a new trial and the
recusal of Judge Harmon. The recusal motion was denied by Judge Montgomery
of the 178th District Court, and Judge Harmon then denied the motion for a new
trial. On direct appeal, Buntion again challenged Judge Harmon’s impartiality,
but his challenge was rejected and his conviction and sentence were affirmed.
B. State Habeas Proceedings
In his state habeas proceedings, Buntion again alleged that his due
process rights were violated because of Judge Harmon’s lack of impartiality. He
specifically complained about Judge Harmon’s prejudging his guilt, the “God’s
work” comment, the commentary about the Gribble decision, the grant and

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recision of the peremptory challenges, the display of the postcard, the attempted
removal of defense counsel Scardino, and the alleged threatening of defense
counsel Tanner. Judge Harmon, the state habeas judge,1 found that there was
no evidence of bias on the part of the trial judge. He also noted that defense
counsel often did not object at trial to the behavior complained about in the
habeas petition. Judge Harmon denied habeas relief. The TCCA relied on the
findings of the lower court and also denied habeas relief.
C. Federal Habeas Proceedings
Buntion alleged numerous grounds of error in his federal habeas petition.
However, the sole issue before this Court is Buntion’s claim that he was denied
due process because Judge Harmon was not impartial. Buntion points to the
following facts as establishing bias: the judge’s pretrial suggestion that Buntion
was guilty; the “God’s work” comment; the statements about the Gribble
decision; the display of the postcard; the judge’s ex parte interactions with
defense counsel Tanner; the attempted removal of defense counsel Scardino; the
grant and removal of the additional peremptory challenges; and the actions of
the trial judge considered as a whole.
The district court interpreted Buntion’s bias argument as being based on
a consistent pattern of “egregious judicial behavior;” therefore, the court
considered multiple error allegations to determine if Judge Harmon was biased.
The district court held that the state court erred in “requiring specific evidence
of a reversible error nature in the judicial misconduct” because Buntion’s claim
is not one of actual bias. Instead, “reliance on the record alone suffices to
establish those apparent biases that rise to the level of a constitutional

1
Although Buntion challenges the fact that deference should be given to the state court
findings when Judge Harmon was essentially approving his own behavior, this court has held
that it is generally proper for the trial judge to preside over the state habeas claim. Vuong v.
Scott, 62 F.3d 673, 684 & n.15 (5th Cir. 1995). Even if such an action was suspect, it does not
support the grant of habeas in this case because the findings of the recusal hearings are also
entitled to AEDPA deference.

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violation.” According to the district court, the state court therefore unreasonably
applied federal law by refusing to consider Buntion’s federal claim because of a
lack of specific evidence of bias. Additionally, the district court found that the
state habeas court’s determination of facts was unreasonable because the state
court considered the claims as individual events, rather than as an overarching,
flawed trial proceeding.
Based on the above determinations, the district court concluded that
Buntion fulfilled his burden under AEDPA. The district court went on to
determine whether there was a violation of Buntion’s constitutional rights by
viewing each of Judge Harmon’s comments and actions in the aggregate. The
district court found bias demonstrated by: the postcard; the “God’s work”
comment; statements indicating that Judge Harmon had prejudged the facts in
the case; the comments about the Gribble decision; Judge Harmon’s ex parte
interactions with state attorneys on legal matters; his pattern of reversing
himself at the urging of prosecutors; and his interactions with defense counsel.
The district court denied habeas relief on all of Buntion’s other claims; Buntion
does not appeal those determinations.
II. DISCUSSION
A. Standard of Review
This court reviews the district court’s legal determinations and application
of AEDPA de novo. Foster v. Quarterman, 466 F.3d 359, 368 (5th Cir. 2006).
Factual findings are reviewed for clear error. Id. AEDPA provides in relevant
part that:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme
Court of the United States.

28 U.S.C. § 2254(d)(1). “A decision is contrary to clearly established federal law
‘if the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case
differently than [the] Court has on a set of materially indistinguishable facts.’”
Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir. 2001) (alterations in original)
(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Where the state court
has identified the proper legal principle but unreasonably applied it to the case,
that court’s determination represents an unreasonable application of federal law.
Id. (quoting Williams, 529 U.S. at 413).
“The question under AEDPA is not whether a federal court believes the
state court’s determination was incorrect but whether that determination was
unreasonable–a substantially higher threshold.” Schriro v. Landrigan, 127 S.
Ct. 1933, 1939 (2007) (citing Williams, 529 U.S. at 410). The factual findings of
the state habeas court are to be given deference unless they are “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2).
In the present case, because the state habeas courts relied heavily on the
direct appeal determination by the TCCA, Ex parte Buntion, No. 22,548-02 (Tex.
Crim. App. Nov. 5, 2003); Ex parte Buntion, No. 588227-A (Tex. Dist. Ct. Sept.
29, 2003), which in turn relied heavily on the legal conclusions of the recusal
hearings, Buntion v. State, No. 71,238 (Tex. Crim. App. May 31, 1995), all of
these findings are entitled to deference under AEDPA. 28 U.S.C. § 2254(e)(1);
see also Guidry v. Dretke, 397 F.3d 306, 325-26 (5th Cir. 2005) (implying that
evidence adduced at state pre-trial suppression hearings is relevant to the
AEDPA determination).

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B. The District Court’s Application of AEDPA
On appeal, the Director argues multiple points of “procedural” error, all
based on his contention that the district court did not correctly apply AEDPA.
The first of these challenges is that the district court actually considered
Buntion’s bias claims de novo instead of under AEDPA’s stricter standard.
Additionally, the Director urges that the district court applied a more lenient
standard when reviewing the state court’s factual determinations than is
required by AEDPA. Finally, the Director contends that the district court
incorrectly relied on sources other than clearly established law as determined by
the Supreme Court.
In applying AEDPA to this case, the district court determined that the
state court’s application of the law was objectively unreasonable. The district
court’s finding constitutes legal error for two reasons. First, the district court
relied on sources outside of clearly established Supreme Court precedent as
required by AEDPA. The district court evaluated Judge Harmon’s behavior
using the Texas Code of Judicial Conduct,2 stating that the provisions of the
Code “track the protections guaranteed by the Constitution,” as well as opinions
from the Fifth Circuit and other circuits. Reliance on these sources is misplaced
under AEDPA, which allows federal review only if the state habeas court
rendered a decision contrary to, or an unreasonable application of, federal law
as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S.
at 412 (holding that AEDPA allows reliance only on the holdings, not dicta, of
Supreme Court opinions). Second, even if the district court had considered only

2
In 1993, the Texas State Commission on Judicial Conduct publically reprimanded
Judge Harmon for his behavior in Buntion’s case, particularly for the “Judge Roy Bean”
postcard and his “God’s work” comment. See Shawn E. Tuma, Law in Texas Literature: Texas
Justice-Judge Roy Bean Style, 21 REV. LITIG. 551, 576-77 (2002); Susan Borreson, The
Ringmaster, TEX. LAW., Jan. 31, 2000, at 20; Gary Taylor, The Judge Gets Beaned, NAT’L L.J.,
May 10, 1993, at 47; Clay Robison, State Panel Reprimands District Judge Harmon, HOUS.
CHRON., Apr. 1, 1993, at A29.

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Supreme Court case law, there is not a basis under Supreme Court precedent for
finding that the state court’s ultimate determination is objectively unreasonable.
See infra Part II-C.
Finally, it should be noted that the district court determined that the state
court’s factual findings were also unreasonable. See 28 U.S.C. § 2254(d)(2). This
is a clear legal error because very few factual determinations are in dispute;
even for those that are, such as whether or not Judge Harmon threatened
defense counsel, Buntion would be required to present clear and convincing
evidence that the state court’s factual determinations were incorrect. Id. at §
2254(e)(1). Buntion has not done so. The district court found that the factual
findings were “unreasonable” because the state court considered Buntion’s
claims of judicial bias as “individual, secluded events.” While it arguably may
have been legal error for the state court to analyze the bias claims in isolation
rather than cumulatively,3 there is no unreasonable factual determination that
the district court relies on to justify its finding that Buntion has satisfied §
2254(d)(2). Therefore, this determination is incorrect as well, although because
the facts are basically agreed on, this error does not have much effect on the
outcome of this case.
C. Judicial Bias Analysis
Having determined that the district court improperly applied AEDPA, we
now analyze Buntion’s claim under the appropriate AEDPA standard.
Defendants in the American judicial system have the right to a fair trial,
and part of this right is fulfilled by a judicial officer who impartially presides
over the trial. See, e.g., Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).

3
Assuming arguendo that this was a legal error on the part of the state habeas court,
the district court still erred in finding the state court’s final conclusion objectively
unreasonable. See Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (“[AEDPA] compels
federal courts to review for reasonableness the state court’s ultimate decision, not every jot of
its reasoning.”). We need not resolve this issue in order to decide this case.

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However, “most questions concerning a judge’s qualifications to hear a case are
not constitutional ones, because the Due Process Clause of the Fourteenth
Amendment establishes a constitutional floor, not a uniform standard.” Id. at
904. A judge will, however, violate a defendant’s due process rights if he is
biased against the defendant or has an interest in the outcome of the case. Id.
at 905. A likelihood or appearance of bias can disqualify a judge as well. Taylor
v. Hayes, 418 U.S. 488, 501 (1974). “A criminal defendant tried by a partial
judge is entitled to have his conviction set aside, no matter how strong the
evidence against him.” Edwards v. Balisok, 520 U.S. 641, 647 (1997) (citations
omitted).
Bias is a difficult claim to sustain under AEDPA because the Supreme
Court’s case law on bias has “acknowledge[d] that what degree or kind of
interest is sufficient to disqualify a judge from sitting ‘cannot be defined with
precision.’” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986) (quoting In re
Murchison, 349 U.S. 133, 136 (1955)); see also Ryan v. Clarke, 387 F.3d 785, 793-
94 (8th Cir. 2004) (“Application of this vague standard, when viewed through the
deferential lens of Williams v. Taylor and the AEDPA, necessarily leaves state
courts considerable latitude to pronounce rulings that do not contradict, and are
reasonable applications of, [relevant Supreme Court precedent]”). Generally, the
Supreme Court has recognized two kinds of judicial bias: actual bias and
presumptive bias. See, e.g., Withrow v. Larkin, 421 U.S. 35, 47 (1975) (“[V]arious
situations have been identified in which experience teaches that the probability
of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.”); Bigby v. Dretke, 402 F.3d 551, 560 (5th Cir. 2005)
(evaluating a judicial bias claim and noting that because there was no
presumption of bias from the defendant’s attack on the judge, it was necessary
to “examine the record for indications of actual bias on the part of the trial
judge”) (emphasis added).

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Almost every bias case before the Supreme Court that has found a due
process violation has done so based on presumptive bias. There are three
situations in which the Supreme Court has found presumptive bias:
(1) the decision maker has a direct personal,
substantial, and pecuniary interest in the outcome of
the case; (2) an adjudicator has been the target of
personal abuse or criticism from the party before him;
and (3) a judicial or quasi judicial decision maker has
the dual role of investigating and adjudicating disputes
and complaints.

Bigby, 402 F.3d at 559 (citing Supreme Court cases).4
Buntion posits that the following behaviors show bias on the part of the
trial judge: the display of the Roy Bean postcard; the “God’s work” comment; the
comment that “sooner or later” Buntion would be convicted and executed; Judge
Harmon’s multiple contacts with the media; his ex parte communications with
the DA’s office; his removal and reinstatement of defense counsel; refusal to
remove jurors exposed to media reports; laughing at a defense witness; not
questioning a juror about the sheriff’s comment that the juror was “dressed to
kill;” the grant and withdrawal of peremptory challenges; and the ex parte
interactions with defense counsel. Judge Harmon’s comments and actions are
certainly inappropriate and indeed atypical for a trial proceeding. However,
none of these comments or actions demonstrate that the judge has any of the
established bases for presumptive bias. Therefore, in order for Buntion to show

4
See also Aetna, 475 U.S. at 813 (judge standing to gain in related litigation should be
disqualified); Ward v. Vill. of Monroeville, 409 U.S. 57 (1972) (adjudicator disqualified for
receiving portion of fines); Johnson v. Mississippi, 403 U.S. 212 (1971) (judge who was subject
of personal attacks and a lawsuit by defendant could not preside); Mayberry v. Pennsylvania,
400 U.S. 455 (1971) (per curiam) (judge who has been subject of personal attack cannot
conduct later contempt proceedings); Murchison, 349 U.S. at 133 (judge disqualified because
he acted as both a one-man grand jury and trial judge); Offutt v. United States, 348 U.S. 11
(1954) (judge “embroiled” with counsel disqualified from conducting contempt proceedings
against counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (disqualifying a judge because of
pecuniary interest).

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a due process violation and obtain habeas relief, he must demonstrate that the
state court unreasonably determined that Judge Harmon was not actually
biased in his case based on clearly established Supreme Court law.
In cases where the defendant is alleging actual bias, opinions formed
based on the facts at trial are rarely a basis for recusal unless they show a
deep-seated, extreme favoritism or antagonism. Liteky v. United States, 510
U.S. 540, 555 (1994). Judges do not have to be naive; the evidence at trial may
reveal the defendant to be a “thoroughly reprehensible person.” Id. at 550-51.
However, judicial opinions will support an actual bias claim if they reveal
favoritism or antagonism such that fair judgment is impossible. Id. at 555; see
also Berger v. United States, 255 U.S. 22, 28 (1921).
Many of Judge Harmon’s actions, while revealing lapses in Judge
Harmon’s judicial temperament, tend to show generalized impertinence and do
not provide the kind of evidentiary support needed for an actual bias allegation.
See Bracy, 520 U.S. at 909 (stating that the petitioner needs evidence that the
trial judge “was actually biased in petitioner’s own case” (emphasis in original)).
The Supreme Court, in Aetna, recognized that only in the most extreme cases
would disqualification on the basis of bias be constitutionally required. 475 U.S.
at 820-821. In that case, the Court considered whether an Alabama Supreme
Court Justice should have recused himself from a bad-faith failure-to-pay case
against an insurance company because of comments he made indicating a
“general hostility toward insurance companies that were dilatory in paying
claims.” Id. at 820. Notwithstanding the Justice’s undisputed statements of
disdain for insurance companies, the Court concluded that such generalized bias
was insufficient to establish a constitutional violation. Id. at 821.
In Liteky, the Supreme Court considered not a Due Process violation, but
the statutory effect of the federal recusal statutes and the reach of the
extra-judicial source rule. 510 U.S. at 541. The Court noted, however, that

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there may be grounds for a bias challenge if “judicial remarks during the course
of a trial . . . reveal such a high degree of favoritism or antagonism as to make
fair judgment impossible.” Id. at 555. As an example of the type of favoritism
or antagonism that would support such a challenge, the Court pointed to the
following comment made by a district court judge in a WWI espionage case
against German-Americans: “‘One must have a very judicial mind, indeed, not
[to be] prejudiced against the German Americans’ [because their] ‘hearts are
reeking with disloyalty.’” Id. (quoting Berger, 255 U.S. at 28) (alterations in
original). While Judge Harmon’s comments here are similarly inimical, because
Liteky and Berger both rely exclusively on statutory law (neither case even
mentions the Due Process Clause), it is not clearly established by Supreme Court
precedent that such judicial antagonism unrelated to one of the grounds of
presumptive bias is a due process violation.
In Taylor v. Hayes, the Supreme Court noted that “a mounting display of
an unfavorable personal attitude toward [the] petitioner” could result in a due
process violation. 418 U.S. 488, 501 (1974). In that case, the Court considered
whether a judge who had become “embroiled in a running controversy” with an
attorney conducting a trial in his court could impartially preside over that
attorney’s contempt hearing. Id. While the Court concluded that it was
improper for that judge to preside over the contempt hearing, id. at 499-500, this
holding was based on two grounds not present in the case before this Court.
First, the Court concluded that the attorney had been denied due process
because the judge denied the attorney the opportunity to defend himself in the
contempt hearing. Id. at 498-500. Second, Taylor noted that there were
“‘marked personal feelings [] present on both sides’ and that the marks of
‘unseemingly conduct (had) left personal stings.’” Id. at 503 (quoting Mayberry,
400 U.S. at 464). Because Taylor does not explicitly hold that the judge was
actually biased and there was other evidence of bias beyond the court’s remarks

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alone, including the judge’s sentencing the petitioner to a very high sentence for
contempt, this case also does not provide this Court with the support necessary
for a finding that the state court’s legal determinations were objectively
unreasonable.
Here, the postcard that Judge Harmon placed on the bench during jury
selection, while displaying a lack of sound judgment on his part, does not
demonstrate any actual bias directed at Buntion. Likewise, the comments by the
sheriff, the attempted removal of defense counsel, the grant and withdrawal of
peremptory challenges, and the media contact also lack any indicia of
particularized bias towards Buntion; therefore, these allegations do not support
a finding of actual bias under the relevant Supreme Court law.
The most disturbing comments by Judge Harmon were his statements that
he was doing “God’s work” in seeing the defendant executed and that Buntion
would eventually be found guilty. Buntion argues that this mindset unduly
influenced the jury in his case. After reviewing the factual findings of the
recusal judges as well as the state habeas judge, we are unable to conclude that
their findings regarding the nature of these comments were an unreasonable
determination of the facts in light of the evidence presented.5 Moreover,

5
In the first recusal hearing before Judge Ables, Judge Harmon testified to the
following with regard to the “God’s work” comment:

Q: . . . At this time, Judge, I’ll just ask you to tell this court your recollection of [the God’s
work] comment under the circumstances of which it was made and what you meant by
it.

A: I absolutely made it. I must admit that I did not remember the circumstances during
which it was made. . . . I do remember that it was when Senator Gramm was coming.
Court was over, we had finished up with the last juror, and I made this comment as
kind of a parting gesture. It was not something I intended to talk to Senator Gramm
about . . . . It was when I said it I realized that I should not have said it, ‘cause I know
that the defendant, not knowing me as [defense counsel] know me perhaps, would not
have perceived it to have been entirely tongue-in-cheek. I am embarrassed to admit
that I am not a pious person . . . .

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Supreme Court case law does not clearly establish bias in a situation such as the
one presently before this court; accordingly, it cannot be shown under AEDPA
that the state court’s determination was objectively unreasonable.
In support of his claim, Buntion contends that the prospect of judicial bias
is especially intolerable in death cases as compared to cases involving all other
penalties. See Bracy v. Schomig, 286 F.3d 406, 415 (7th Cir. 2002) (citing
Spaziano v. Florida, 468 U.S. 447, 468 (1984)). In light of this, he urges this
Court to uphold the district court’s determination that Judge Harmon’s actions
and statement are sufficient to constitute actual bias under the circumstances
of this case. Citing Webb v. Texas, he argues that even a single instance of
judicial impartiality can be sufficient to support a deprivation of due process
claim. 409 U.S. 95, 97 (1972). The bedrock principle that “death is different” is
always a consideration in the handling of death cases. With this in mind,
however, this Court must still work within the framework of AEDPA, which
requires federal courts to exercise deferential review of state court decisions.

With regard to the that incident, Scardino testified to the following:

Q: You were present when the statement was made about “doing God’s work”?

A: Yes, sir.

Q: For example, did you take that as a serious statement or as a tongue-in-cheek
statement or somewhere in between. Can you tell me?

A: Everyone was joking about the goings-on in the courtroom at the time. It wasn’t a
serious atmosphere, it was one of kidding, and we were discussing visiting the senator
as he came to town. And when Judge Harmon made the comment, it was a comment
made that he was going to relay that to the senator.

In light of this testimony, Judge Ables concluded that recusal was unnecessary.
Similarly, the TCCA on direct appeal concluded that this comment “although certainly
inappropriate, was made entirely in jest and did not reflect any genuine bias against the
defendant.” This sentiment was repeated by the state trial habeas court, whose findings were
wholly adopted by the TCCA on habeas appeal.
Similarly, the state courts found that there was no evidence that Judge Harmon
actually believed that the defendant was guilty before the start of trial.

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The Eighth Circuit, similarly bound by AEDPA, has also confronted death
penalty cases that considered judicial bias claims asserted as part of federal
habeas litigation. In Ryan, the Eighth Circuit held that under the highly
deferential standards of AEDPA, it was not possible to conclude that the state
court had unreasonably applied Supreme Court precedent in denying the
defendant habeas relief where a judge engaged in an ex parte conference with
family members of the murder victims prior to imposing the death penalty. 387
F.3d at 786-87. Similarly, in Jones v. Luebbers, the court declined to reverse the
state court’s denial of habeas relief where the judge engaged in an ongoing,
hostile dispute with defense counsel. 359 F.3d 1005, 1014-15 (8th Cir. 2004).
The court explained that the state court’s determination could not be considered
objectively unreasonable in light of the relevant Supreme Court law. Id.
To be clear, we find Judge Harmon’s actions and statements at issue in
this case to be very troubling and hardly reflective of the high standards that
judges should strive to maintain. The district court’s findings and rulings reflect
a similar disdain for Judge Harmon’s irreverent statements and actions both on
and off the bench. Although we might decide this case differently if considering
it on direct appeal, given our limited scope of review under AEDPA, we are
limited to determining whether the state court’s decision was objectively
unreasonable. After a careful review of the record, we must therefore conclude
that Buntion’s allegations do not demonstrate actual bias under established
Supreme Court precedent such that this court can hold that the state court
decision was unreasonable.

III. CONCLUSION
Judge Harmon was publicly reprimanded for his behavior in this case by
the Texas State Commission on Judicial Conduct. We agree that Judge

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Harmon’s various comments and actions both on and off the bench as previously
described in this opinion were highly improper. However, under the highly
deferential standard mandated by AEDPA, we cannot conclude that the state
habeas court’s decision was an unreasonable application of controlling Supreme
Court precedent, nor did it involve an unreasonable determination of the facts
in light of the evidence presented. This is especially true when the allegations
of bias do not relate to pecuniary interests or procedural infirmities but rather,
relate to alleged personal animosity. Therefore, we VACATE the district court’s
grant of conditional habeas relief, and DENY habeas relief.

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