In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐1308
ERIC T. ALSTON,
Petitioner‐Appellant,
v.
JUDY P. SMITH,
Respondent‐Appellee.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:15‐cv‐00325‐bbc — Barbara B. Crabb, Judge.
ARGUED SEPTEMBER 22, 2016 — DECIDED OCTOBER 18, 2016
Before BAUER, POSNER, and MANION, Circuit Judges.
BAUER, Circuit Judge. Petitioner‐appellant, Eric Alston,
challenged the revocation of his probation by an administrative
law judge (ALJ), claiming that certain information the ALJ
learned prior to his revocation hearing created a risk of bias in
violation of his due process rights. Alston’s appeal was denied
by the Administrator of the Wisconsin Division of Hearings
and Appeals, the Dane County Circuit Court, and finally the
Wisconsin Court of Appeals. After the Wisconsin Supreme
2 No. 16‐1308
Court declined to review the case, Alston filed a petition for a
writ of habeas corpus in federal district court. The district court
denied the petition, holding that the Wisconsin Court of
Appeals was not unreasonable in concluding that there was no
impermissibly high risk of bias. We affirm.
I. BACKGROUND
On June 28, 2010, Alston was placed on probation by the
Dane County Circuit Court after his conviction on five criminal
charges. Shortly thereafter, Dane County law enforcement
agencies established a “Special Investigation Unit” (SIU) to
monitor and offer resources to ten probationers whom they
identified as “serious, assaultive offenders.” In November
2011, Alston was identified for participation in the SIU pro‐
gram through which he was offered community resources
aimed at deterring him from reoffending. Alston’s participa‐
tion, however, also came with the admonition that any
probation violation would result in the Department of Correc‐
tions vigorously seeking full revocation of probation.
Alston was arrested on December 6, 2011, for violating his
probation. On April 24, 2012, a revocation hearing was held
before Beth Whitaker, an ALJ for the Wisconsin Division of
Hearings and Appeals. Alston’s participation in the SIU was
discussed at the hearing, after which ALJ Whitaker informed
the parties that she had previously attended a presentation
about the program given by law enforcement members of the
SIU. In explaining the presentation, ALJ Whitaker stated:
It was two law enforcement officers, if I remember
correctly, and they gave us an informational presen‐
tation. And it may have been at the request of our
No. 16‐1308 3
agency, and it may have been initiated by someone
else. I don’t know, I just went along with the other
[hearing examiners] in my office and we were given
information about this program right around the
time that it came out in the newspaper. And the
summary of it as I remember it is we were told
about the vast resources that were being provided to
these folks that were at high risk, and that the
program was intended as a last chance, and that
violations should be treated as sort of a last straw.
And in the case of supervision that it would be
expected that they wouldn’t be given another
chance. In other words, [they] would be revoked,
and in the case of a criminal case they would be
prosecuted. What I didn’t hear is that we’re ex‐
pected, that they expected us to revoke people when
the violations weren’t proven, so I think to that
extent, I mean I don’t think at any point that they
suggested that we revoke people that hadn’t done
anything. So there’s part of my decision making
that’s not relevant to what their program is about,
part of it that I guess you could say is [relevant].
Alston then requested a suspension of the proceedings to
allow for the substitution of a “neutral party” who had not
attended this presentation. His request was denied.
ALJ Whitaker issued a written order revoking Alston’s
probation, and Alston appealed to the Administrator of the
Division on Hearings and Appeals. The Administrator af‐
firmed the revocation and found that ALJ Whitaker’s atten‐
dance at the SIU training was not problematic. After the Circuit
4 No. 16‐1308
Court of Dane County also affirmed the order, Alston appealed
to the Wisconsin Court of Appeals.
The Wisconsin Court of Appeals rejected Alston’s argu‐
ment that ALJ Whitaker’s attendance at the SIU training
created a risk of bias that violated his due process rights. First,
the court found that ALJ Whitaker was not biased in fact, citing
the explanation of the SIU meeting she provided at Alston’s
hearing. The court then concluded that her attendance at the
meeting did not create an impermissibly high risk of bias. It
explained that members of the legal profession, including the
judiciary, regularly attend trainings, seminars, and meetings
regarding developments in legal policy and law enforcement
tactics. The law enforcement officials at the SIU training did
not discuss any specifics of Alston’s case and provided only
general information about the workings and goals of the
program. The court held, therefore, that ALJ Whitaker’s
attendance did not create an impermissibly high risk of bias in
violation of Alston’s due process rights.
After the Wisconsin Supreme Court denied Alston’s
petition for review, he sought federal habeas relief. The district
court found that the Wisconsin Court of Appeals’ decision did
not involve an unreasonable application of federal law nor an
unreasonable determination of the facts. It held that because
fair minded jurists could agree with the conclusion that ALJ
Whitaker’s attendance at the SIU training did not give rise to
an impermissibly high risk of bias against Alston, he was not
entitled to habeas relief.
No. 16‐1308 5
II. DISCUSSION
We review a district court’s denial of a habeas petition
de novo. Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir. 2009)
(citation omitted). The Antiterrorism and Effective Death
Penalty Act (“AEDPA”) provides that a federal court may only
grant habeas relief if the adjudication of petitioner’s claim by
a state court “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States;” or if the adjudication “resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed‐
ing.” 28 U.S.C. § 2254(d). We apply this analysis to the decision
of the Wisconsin Court of Appeals, as that was the last state
court that substantively adjudicated Alston’s claim. Gonzales,
565 F.3d at 379 (citation omitted).
Alston seeks relief under all three of § 2254(d)’s exceptions.
He argues that (1) the Wisconsin Court of Appeals’ decision
was contrary to established federal law governing his due
process right to an impartial adjudicator; (2) the decision
involved an unreasonable application of that body of law; and
(3) the decision was based on an unreasonable determination
of the relevant facts. We address each argument individually
below, but first, it is important to set forth the established law
governing the due process right to an unbiased adjudicator.
A fair hearing before a fair and unbiased adjudicator is a
basic requirement of due process under the Fourteenth
Amendment. Withrow v. Larkin, 421 U.S. 35, 46 (1975) (citation
omitted). This principle applies to administrative tribunals, id.
6 No. 16‐1308
(citation omitted), and proceedings involving the revocation of
probation. See Gagnon v. Scarpelli, 411 U.S. 778, 782–86 (1973).
Due process is violated not only where an adjudicator is biased
in fact, but also where a situation presents a particularly high
probability of bias. Withrow, 421 U.S. at 47. The inquiry as to
whether such a probability exists is an objective one. Caperton
v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 881 (2009). The
question is “whether the average judge in [this] position is
‘likely’ to be neutral, or whether there is in unconstitutional
‘potential for bias.’” Id. The facts showing a probability of bias
must be strong enough to “overcome a presumption of honesty
and integrity in those serving as adjudicators.” Withrow, 421
U.S. at 47.
A. § 2254(d)(1) Exception for Decision “Contrary to”
Clearly Established Federal Law
Alston first argues that the Wisconsin Court of Appeals’
decision was “contrary to” clearly established Supreme Court
precedent. Under § 2254(d)(1), a decision is “contrary to”
clearly established Federal law if the state court “applies a rule
that contradicts the governing law set forth in [Supreme Court]
cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). This excep‐
tion to AEDPA applies only if the state court decision is
“diametrically different,” “opposite in character or nature,” or
“mutually opposed” to clearly established precedent. Id. at
405–06.
Alston contends that the Wisconsin Court of Appeals’
decision was contrary to rules established by two specific
Supreme Court cases. First, he argues that the decision was
contrary to Gagnon v. Scarpelli, 411 U.S. 778, in that the decision
No. 16‐1308 7
did not specifically address the potential for bias as to each
individual component of the revocation decision. In Gagnon,
the Supreme Court confirmed that probationers are entitled to
minimum due process rights at revocation hearings. Id. at 786
(citing Morrissey v. Brewer, 408 U.S. 471 (1972) and extending its
holdings to the probation context). In the context of determin‐
ing the scope of a probationer’s right to counsel at those
hearings, the Court also recognized that a revocation decision
has “two analytically distinct components:” (1) the determina‐
tion as to whether the probationer violated a condition of
probation; and (2) the determination as to whether to revoke
probation or find another alternative. Id. at 784 (citing
Morrissey, 408 U.S. at 479–80). Alston mistakenly relies on this
recognition to argue that the state court was required, but
failed to make specific and separate findings that ALJ Whitaker
was not biased when deciding each of those two components.
However, Gagnon imposes no such duty on a reviewing court
and Alston cites no other authority to support that contention.
The Wisconsin Court of Appeals made clear that it found no
bias, nor an unconstitutional potential for bias, at any juncture
of Alston’s revocation hearing. That conclusion is not “diamet‐
rically different” or “mutually opposed” to any clearly estab‐
lished Supreme Court precedent.
Alston then argues that the Wisconsin Court of Appeals’
decision was contrary to the rule from Caperton, 556 U.S. at 881,
that the probability of bias is to be determined objectively.
Alston claims that the court primarily, and improperly,
focused on “actual bias.” That argument is without merit.
While the court did make a finding that ALJ Whitaker was not
biased in fact, it also concluded “that the hearing examiner’s
8 No. 16‐1308
attendance [at the SIU meeting] did not create an imper‐
missibly high risk of bias in violation of the due process
clause.” As support for that conclusion, the court cited the
frequency with which members of the judiciary attend educa‐
tional seminars on legal policy and the fact that the SIU
meeting presented only general information. It found, objec‐
tively, that no impermissible risk of bias was presented by
attendance at such a meeting. That the court found no actual
bias, in addition to no objective risk of impermissible bias, does
not render its decision contrary to clearly established federal
law.
B. § 2254(d)(1) Exception for “Unreasonable Application”
of Clearly Established Federal Law
Alston also argues that the Wisconsin Court of Appeals’
decision “involved an unreasonable application” of federal law
governing his due process right to an impartial adjudicator.
Under § 2254(d)(1), “an unreasonable application of federal law
is different from an incorrect application of federal law.”
Williams, 529 U.S. at 410. It is not enough that a state court
simply may have applied the law erroneously or incorrectly.
Id. at 411. It must also be unreasonable, “which means some‐
thing like lying well outside the boundaries of permissible
differences of opinion.” Jackson v. Frank, 348 F.3d 658, 662
(7th Cir. 2003) (internal quotation and citation omitted). “If
this standard is difficult to meet, that is because it was meant
to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
On this point, Alston takes issue with three elements of
the Wisconsin Court of Appeals’ decision. First, he argues
that the court mischaracterized the SIU meeting as simply an
No. 16‐1308 9
“educational seminar,” rather than a prejudicial encounter that
created an impermissible risk of bias against him. Second, he
argues that it was unreasonable for the court to rely on the fact
that the specifics of his case were not discussed at the meeting.
Finally, he argues that the court should not have relied on ALJ
Whitaker’s explanation that she would decide Alston’s case
impartially because her subjective assessment of her own
potential bias is irrelevant.
None of these arguments is persuasive. As the Wisconsin
Court of Appeals noted, members of the judiciary and other
administrative adjudicators regularly attend informational
programs on developments in the law and initiatives in law
enforcement. The SIU meeting presented general information
about a new probation initiative. Despite Alston’s argument to
the contrary, it was proper for the court to rely on the fact that
the officers at the meeting neither identified Alston nor offered
any details of his case. Because she learned nothing specific
about Alston or his case, ALJ Whitaker was no more disquali‐
fied by attending that meeting than if she had learned about
the SIU from a news article or bulletin. As to ALJ Whitaker’s
explanation at the hearing, it may be true that her own belief
is not wholly instructive on the potential for bias. As was just
discussed, however, the court had ample support, aside from
that statement, for its conclusion that there was no unconstitu‐
tional risk of bias created by her attendance at the SIU meeting.
The court’s application of the law in reaching that conclusion
was neither incorrect nor unreasonable. Certainly, its reasoning
and holding do not lie “well outside the boundaries of permis‐
sible differences of opinion,” such that habeas relief is war‐
ranted. Jackson, 348 F.3d at 662.
10 No. 16‐1308
C. § 2254(d)(2) Exception for Unreasonable Determina‐
tion of Facts
Finally, Alston argues that, under § 2254(d)(2), the Wiscon‐
sin Court of Appeals’ decision relied on an unreasonable
determination of the facts. Under this section, habeas relief
may be granted only if the state court decision “rests upon fact‐
finding that ignores the clear and convincing weight of the
evidence.” McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015)
(citation omitted). The decision must be “so inadequately
supported by the record as to be arbitrary and therefore
objectively unreasonable.” Ward v. Sternes, 334 F.3d 696, 704
(7th Cir. 2008) (internal citation omitted).
Alston takes issue with the Wisconsin Court of Appeals’
finding that ALJ Whitaker’s explanation of the SIU meeting
confirmed that she would decide Alston’s case like any other.
In Alston’s view, ALJ Whitaker directly contradicted that
assessment when she said, “there’s part of my decision making
that’s not relevant to what their program is about, part of it
that I guess you could say is [relevant].” Therefore, he argues,
it was unreasonable for the court to find that she was not
biased in fact.
This argument fails to overcome the deference we must
afford the state court. Even if ALJ Whitaker considered some
of the information she learned about the SIU as relevant to her
decision, it was not objectively unreasonable for the court to
find that she was not biased. No specifics about Alston or his
case were presented at the meeting and there was no evidence
of prejudgment on ALJ Whitaker’s part. Based on the record
before the court, we cannot say that its interpretation of ALJ
No. 16‐1308 11
Whitaker’s statement was arbitrary or that it ignored the clear
and convincing weight of the evidence.
III. CONCLUSION
The Wisconsin Court of Appeals’ decision was consistent
with, and did not involve an unreasonable application of the
relevant Supreme Court precedents, nor did it rely on an
unreasonable determination of the facts before it. Therefore,
we AFFIRM the district court’s judgment.