Timothy Davis v. Charlie E. Jones, (11th Cir. 2007)
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[P U B L IS H ]
IN THE UNITED STATES COURT OF APPEALS
F O R THE ELEVENTH CIRCUIT FILED
U .S . COURT OF APPEALS
E L E V E N T H CIRCUIT
N o v e m b e r 8, 2007
N o . 06-15530 T H O M A S K. KAHN
CLERK
D . C. Docket No. 99-00416-CV-ID-DRB
T IM O T H Y DAVIS,
Petitioner-Appellant,
versus
CHARLIE E. JONES, Warden
TROY KING, Attorney General of
the State of Florida,
Respondents-Appellees.
A p p e al from the United States District Court
fo r the Middle District of Alabama
(N o v em b er 8, 2007)
B efo re TJOFLAT, HULL and WILSON, Circuit Judges.
H U L L , Circuit Judge:
T im o th y Charles Davis, an Alabama state prisoner appearing with counsel, ap p eals the district court's denial of his habeas corpus petition brought under 28 U .S .C . § 2254. After review and oral argument, we affirm.
I. BACKGROUND In his § 2254 petition, Davis challenges his 1980 murder conviction in A lab am a state court. Davis, who was seventeen years old at the time, first ap p eared in juvenile court before Judge Robert Teel, Jr. for two detention hearings an d one transfer hearing as to the murder charge. Davis was then tried as an adult in Alabama Circuit Court before Judge Kenneth Ingram.
In the juvenile court proceedings, the State of Alabama was represented by th ree or four attorneys at each hearing. One of the State's lawyers was Frank Teel, th e brother of Judge Teel. Davis does not challenge the Alabama state court's fin d in g s that there was no actual bias on the part of Judge Teel, as the juvenile co u rt judge. Rather, Davis contends that the relationship between Judge Teel and F r an k Teel created an appearance of partiality and violated his federal co n stitu tio n al due process rights, requiring reversal of his murder conviction. We b eg in by reviewing the Alabama juvenile and state court proceedings.
A. J u v en ile Court Proceedings O n July 25, 1978, Davis, who was seventeen years old at the time,1 appeared b efo re Judge Teel in Alabama juvenile court for a detention hearing in connection w ith the murder of sixty-eight-year-old Mrs. Avis Alford at Alford's Grocery on Ju ly 20, 1978. Special Prosecutors Mitchell Gavin and Tom Radney and Assistant D is tr ic t Attorney Frank Teel, who was the brother of Judge Teel, appeared as c o u n s el for the State of Alabama. Defense attorneys Allen Edwards, Jr. and Lee S im s represented Davis.
Prosecutors Frank Teel and Gavin each questioned three of the State's six to ta l witnesses. The State presented testimony that Davis's motorcycle was seen at A lfo rd 's Grocery near the time of the murder, that Davis was seen on his m o to r c yc le shortly after the murder with blood on his hands and clothing, and that D av is told the police at the crime scene that he had found Alford's body in the s to r e . Frank Teel made the closing argument for the State. Davis's counsel resp o n d ed that the State had failed to establish probable cause for detaining Davis.
Judge Teel rejected the State's request for detention and ordered that Davis be r e le a s e d .
O n September 26, 1978, Davis appeared before Judge Teel for a second d eten tio n hearing regarding the Alford murder. Gavin, Radney and Frank Teel, alo n g with District Attorney Bob Williams, appeared as counsel for the State.
District Attorney Williams read the petition charging Davis with killing Alford.
Williams and Radney presented testimony from the State's twelve witnesses, w h ich included much of the same testimony as at the first detention hearing, and fo ren sic evidence from the crime scene and Davis's clothing that connected him to th e Alford murder. Frank Teel did not present any witnesses or make the closing a r g u m e n t.
Sims and Edwards again represented Davis. The defense called one witness w h o testified that Davis's fingerprints were not found on either the knife believed to be the murder weapon or Alford's wallet. Judge Teel ruled that the State estab lish ed probable cause to believe that the allegation of delinquency was true an d ordered that Davis be detained.
On November 17, 1978, Davis appeared before Judge Teel for a juvenile c o u r t hearing on the State's motion to transfer him to Circuit Court to be tried as an a d u lt for the Alford murder. At the time of the murder, Davis's age was seventeen years, four months. Gavin, Radney and Frank Teel again appeared as counsel for th e State. Sims and Edwards again represented Davis. The State presented testim o n y from eleven witnesses, and Frank Teel questioned two of them.
The State first presented testimony from Michael Smith, the probation o fficer whose report recommended that Davis be certified to be tried as an adult.
Smith recommended that Davis be tried as an adult primarily because of the nature o f the charges, the lack of State juvenile facilities that could provide him adequate co n fin em en t and treatment, and the fact that Davis had accepted the responsibility o f being an adult by getting married and having full-time employment. The State th en presented testimony similar to what was presented at the second detention h earin g as to the eyewitnesses and forensic evidence connecting Davis to the m u rd er.
At the conclusion of the hearing, defense counsel argued that Davis was still a young boy and that the juvenile system was best suited to treat him. In closing fo r the State, Gavin argued that Davis should be tried as an adult because he was a m arried , full-time employed adult and, further, the juvenile courts were not p rep ared to handle a criminal case of this magnitude. Judge Teel ruled that the S tate had met its burden and certified Davis to be tried as an adult.
D av is has never claimed (1) that there was any evidentiary or legal error in th e juvenile court's certification or detention rulings, or (2) that the State used the tran scrip ts or any part of the juvenile court proceedings in his murder trial in C ircu it Court. Davis also never moved to recuse Judge Teel.2 B. S ta te Trial and Direct Appeal A fter the murder charge was transferred in 1978 to Alabama Circuit Court, Ju d g e Kenneth Ingram presided over Davis's case. Frank Teel continued as one of th e State's attorneys, along with District Attorney William Hill and Assistant D is tr ic t Attorney Robert Williams, Jr. However, Judge Teel no longer was in v o lv ed in the case.
Davis's jury trial before Judge Ingram began on April 14, 1980. The jury fo u n d Davis guilty of capital murder and fixed his punishment at death by e le c tr o c u tio n .
Davis then filed a motion for a new trial based on, inter alia, Judge Teel's h av in g presided in juvenile court when Judge Teel's brother was one of the State's atto rn eys. This was the first time Davis objected to Judge Teel's presiding. The state trial court denied Davis's motion for a new trial. After holding a separate sen ten cin g hearing, the state trial court sentenced Davis to death by electrocution.
D av is appealed, and the Alabama Court of Criminal Appeals ultimately affirm ed Davis's conviction and sentence.3 See Davis v. State, 554 So. 2d 1094 3 We say "ultimately" because the Alabama Court of Criminal Appeals, in a one-sentence order, initially reversed Davis's murder conviction and remanded the case for a new trial pursuant to Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980), in which the Supreme Court concluded that a death sentence violated due process where an Alabama statute prohibited the trial judge from instructing the jury on lesser included noncapital offenses and evidence would have supported such an instruction. See Davis v. State, 408 So. 2d 532 (Ala. Crim. App. 1981).
The United States Supreme Court, however, vacated that decision of the Alabama Court ( A la . Crim. App. 1984). In that direct appeal, Davis argued, inter alia, that Judge T eel's sua sponte failure to recuse himself from the juvenile court proceedings w h e n his brother Frank Teel appeared as one of the State's attorneys violated D av is's constitutional rights to due process.4 In denying this claim, the state ap p ellate court determined that Judge Teel was not required to disqualify himself u n d er Alabama Code § 12-1-12 5 because his brother was not a "party" in the p ro ceed in g . Id. at 1098-99.
The state appellate court also examined Canon 3C(1)(d) of the Alabama C an o n s of Judicial Ethics, which provides that a judge should disqualify himself in a proceeding in which "his impartiality might reasonably be questioned," in c lu d in g , but not limited to, instances where: (d ) He or his spouse, or a person within the fourth degree of relatio n sh ip to either of them, or the spouse of such a person: (i) Is named a party to the proceeding, or an officer, director, or tru stee of a party; (ii) Is known by the judge to have an interest that could be su b stan tially affected by the outcome of the proceeding . . . .
A la . Canons Jud. Ethics 3C(1)(d)(i)-(ii). The state appellate court concluded under C an o n 3C(1)(d)(ii) that Judge Teel was not required to recuse himself because his b ro th er, acting in his official capacity as an Assistant District Attorney, did not h av e "an interest that could be substantially affected by the outcome of the p ro ceed in g [s]." Davis, 554 So. 2d at 1098-99 (alteration in original) (quotation m a rk s omitted). The state appellate court reasoned that because Frank Teel's "fee o r salary was not dependent upon the result of the litigation . . . he had no interest o th er than his pride in the successful outcome of the proceedings." Id. at 1099 (q u o tatio n marks omitted).
The state appellate court also found that Davis had presented no evidence of actu al bias by Judge Teel to rebut the presumption in Alabama law that a judge is q u alified and unbiased. Id. The state appellate court noted that Davis did not ch allen g e Judge Teel's presiding over the juvenile court until Davis filed a motion fo r a new trial nearly two years after the juvenile court proceedings. Id.
Furthermore, after independently reviewing the juvenile court proceedings before Ju d g e Teel, the state appellate court found no evidence of bias against Davis and n o ted that Judge Teel's ruling at the first detention hearing was favorable to Davis.
Id. Finally, in evaluating Davis's "appearance" claim, the Alabama Court of C r im in a l Appeals determined that Judge Teel's decision to certify Davis to be tried as an adult was well reasoned and showed no signs of an abuse of discretion. Id.
T h e Supreme Court of Alabama summarily affirmed as to the judicial recu sal issue. Ex parte Davis, 554 So. 2d 1111 (Ala. 1989). The Supreme Court of A la b a m a thereafter overruled Davis's application for rehearing. Davis v. State, 5 6 9 So. 2d 738 (Ala. 1990). The United States Supreme Court denied Davis's p etitio n for a writ of certiorari. Davis v. Alabama, 498 U.S. 1127, 111 S. Ct. 1091 (1 9 9 1 ).
C. R u le 32 Petition In February 1992, Davis, through counsel, filed a petition for relief from his m u r d e r conviction and death sentence pursuant to Alabama Rule of Criminal P ro ced u re 32. In his Rule 32 petition, which he amended several times, Davis arg u ed , inter alia, that Judge Teel's presiding over the juvenile court proceedings created an appearance of partiality that violated Davis's rights to due process and a fair proceeding under both the federal and Alabama constitutions. The Rule 32 co u rt denied relief. Davis v. State, No. CV-92-014 (Ala. Cir. Ct. Jan. 31, 1997).
Specifically, the Rule 32 court denied Davis's judicial bias claim because it already h a d been addressed on direct appeal. Id. at 3. The Alabama Court of Criminal A p p ea ls affirmed the judgment of the Rule 32 court, concluding that Davis's ju d ic ia l bias claim was procedurally barred under Alabama Rule of Criminal P ro ced u re 32.2(a)(3) and (4).6 Davis v. State, 720 So. 2d 1006, 1014 (Ala. Crim.
A p p . 1998).
Both the Supreme Court of Alabama, Ex parte Davis, No. 96-1093 (Ala.
A u g . 14, 1998), and the United States Supreme Court, Davis v. Alabama, 525 U.S.
1 1 4 9 , 119 S. Ct. 1049 (1999), summarily denied Davis's petitions for a writ of c e r tio r a r i.
D. S ectio n 2254 Petition I n April 1999, Davis filed his § 2254 habeas corpus petition in the district co u rt. The district court dismissed several of Davis's claims as procedurally b arred . Subsequently, the district court granted Davis's § 2254 petition as to his d eath sentence, vacating it under Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2 0 0 5 ),7 but denied his claims challenging his murder conviction. Davis v. Jones, 4 4 1 F. Supp. 2d 1138 (M.D. Ala. 2006).
Specifically, the district court denied Davis's claim that his federal co n stitu tio n al due process rights were violated by Judge Teel's participation in D av is's juvenile court proceedings. The district court found that Davis had not refu ted the findings of the Alabama Court of Criminal Appeals that there was no ev id en ce of actual bias on the part of Judge Teel. Id. at 1156-57.
As to any presumption of bias, the district court rejected Davis's argument th at Judge Teel's kinship to one of the prosecutors established a presumption of b ias, noting that the United States Supreme Court had stated that most matters of ju d ic ia l disqualification do not rise to the level of a constitutional violation. Id. at 1 1 5 8 . The district court also agreed with the Third and Seventh Circuits' decisions rejectin g the argument that the Due Process Clause requires that a judge recuse h im self whenever there is an appearance of bias. Id. at 1154-56 (citing Johnson v. C arro ll, 369 F.3d 253 (3rd Cir. 2004), and Del Vecchio v. Ill. Dep't of Corr., 31 F .3 d 1363 (7th Cir. 1994)). Finally, the district court concluded that the cases cited b y Davis applying the federal recusal statute, 28U.S.C. § 455(a), were inapplicable to an appearance-of-bias challenge under the Due Process Clause. Id. at 1158.
Thus, based on Davis's failure to establish either actual or presumed bias, the d istrict court held that the Alabama Court of Criminal Appeals' decision denying D a v is 's due process claim was not contrary to, or an unreasonable application of, clearly established federal law. Id. at 1159.
The district court granted Davis a certificate of appealability ("COA") as to whether the district court erred in denying Davis's claim that he was denied due p ro cess where a judge presided over Davis's juvenile court pre-trial proceedings w h ile the judge's brother appeared as counsel for the prosecution.8 II. DISCUSSION A. S t a n d a r d of Review O u r review of the district court's denial of a § 2254 petition is de novo but is "h ig h ly deferential" to the state court's decision. Marquard v. Sec'y for Dep't of C o rr., 429 F.3d 1278, 1303 (11th Cir. 2005), cert. denied, U.S. , 126 S. Ct.
2 3 5 6 (2006); Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).
S p e c if ic ally , federal courts may not grant habeas corpus relief on claims that were p rev io u sly adjudicated on the merits in state court unless the state court's decision w a s "contrary to, or involved an unreasonable application of, clearly established F ed eral law, as determined by the Supreme Court of the United States," 28U.S.C.
§ 2254(d)(1), or "based on an unreasonable determination of the facts in light of th e evidence presented in the State Court proceeding," 28U.S.C. § 2254(d)(2).9 A state court decision involves an "unreasonable application" of clearly e sta b lis h e d Supreme Court precedent under § 2254(d)(1) if the state court "id en tifies the correct governing legal principle from [the Supreme] Court's d ec isio n s but unreasonably applies that principle to the facts of the prisoner's c as e." Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000). Even if the federal habeas court concludes that the state court applied federal law in co rrectly, relief is appropriate only if the application is also objectively u n reaso n ab le. Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850 (2002).
In addition, a state court's factual findings are presumed true unless the p e titio n e r rebuts them by clear and convincing evidence. 28U.S.C. § 2254(e)(1); M a rq u a rd , 429 F.3d at 1303; Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002).
B. A p p ea ra n ce-o f-P a rtia lity Claim In his § 2254 petition and on appeal, Davis has not alleged, and there is no ev id en ce that Judge Teel had, any actual bias against Davis. There is also no a lle g a tio n of any error in Judge Teel's detention or certification rulings. Rather, D a v is 's claim is (1) that Judge Teel's impartiality might reasonably have been q u e stio n e d when he presided over hearings where his brother was a prosecutor, (2 ) that Judge Teel should have recused sua sponte due to the appearance of p a r tia lity , and (3) that the Supreme Court has clearly established that an ap p earan ce of partiality by a state judge violates the Due Process Clause of the F o u r te en th Amendment to the United States Constitution and requires reversal of a state criminal conviction.
Before discussing the Due Process Clause, we stress that the need to foster an appearance of impartiality in the judiciary is not only important but also well e n s h r in e d in the statutes and ethical canons governing both state and federal ju d g e s . For example, the Alabama Canons of Judicial Ethics require that "[a] ju d g e should disqualify himself in a proceeding in which . . . his impartiality might reaso n ab ly be questioned," which includes cases where a person within the fourth d e g r e e of relationship to the judge is "a party to the proceeding or an officer, d irecto r, or trustee of a party" or has "an interest that could be substantially a ff ec te d by the outcome of the proceeding." Ala. Canons Jud. Ethics 3C(1)(d)(i)(ii).10 Similarly, both the federal recusal statute and the Code of Conduct for U n ited States Judges require recusal in any proceeding where a judge's "im p artiality might reasonably be questioned." 28U.S.C. § 455(a); Code of C o n d u ct for United States Judges Canon 3C(1); see also Model Code of Jud.
C o n d u ct R. 2.11 (2007) (same). The judiciary's concern with maintaining ap p earan ces of impartiality "stems from the recognized need for an unimpeachable ju d icial system in which the public has unwavering confidence." Potashnick v. P o rt City Constr. Co., 609 F.2d 1101, 1111 (5th Cir. 1980)11 (discussing § 455, the f ed e r al recusal statute).12 F u r th e r m o r e , we have no doubt that a federal judge would have been re q u ired to recuse if faced with the same situation as Judge Teel where the judge's b ro th er appeared as an attorney representing a party before Judge Teel. Both the fed eral recusal statute and Code of Judicial Conduct for Federal Judges, unlike the A lab am a Canons, provide that a judge's "impartiality might reasonably be q u e stio n e d " when someone "within the third degree of relationship [to the judge] . . . [i]s acting as a lawyer in the proceeding." 28U.S.C. § 455(b)(5)(ii); Code of C o n d u c t for United States Judges Canon 3C(1)(d)(ii).13 H o w ev er, in the instant case, our habeas review under § 2254(d) does not co n cern application of the federal recusal statute or federal canons because they do n o t govern state judges. See 28U.S.C. § 455(a); Introduction to the Code of C o n d u ct for United States Judges. Furthermore, we need not decide whether the A lab am a appellate court's determination that recusal was not required under the A lab am a Canons of Judicial Ethics was correct under Alabama law. We will not q u e stio n the Alabama appellate court's application of state law in federal habeas c o r p u s review. See Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1 9 8 3 ) ("A state's interpretation of its own laws or rules provides no basis for fed eral habeas corpus relief, since no question of a constitutional nature is in v o lv e d ." ) .
In stead , our habeas review here narrowly concerns only the Due Process C lau se and whether the Alabama Court of Criminal Appeals' rejection of Davis's fed eral constitutional due process claim constituted an "unreasonable application" o f clearly established federal law as determined by the Supreme Court's precedent in 1984.14 In ascertaining "clearly established Federal law" regarding the Due P r o c es s Clause for our § 2254(d)(1) analysis, we look to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-co u rt decision." 15 Williams, 529 U.S. at 412, 120 S. Ct. 1495 at 1523.
W e fully agree with Davis that "[a] fair trial in a fair tribunal is a basic r eq u ir em e n t of due process." Callahan v. Campbell, 427 F.3d 897, 928 (11th Cir. 2 0 0 5 ) (quoting In re Murchison, 349 U.S. 133, 136-37, 75 S. Ct. 623, 625 (1955)).
However, there is no claim, much less showing, of any error or actual bias by J u d g e Teel. Rather, Davis makes only an appearance claim, and, as outlined b e lo w , none of the Supreme Court cases relied upon by Davis establishes that an a p p e a r an c e problem violates the Due Process Clause.
I n two of the cases cited by Davis, the judge in question had an actual p ecu n iary interest in the litigation. See Ward v. Village of Monroeville, 409 U.S.
5 7 , 93 S. Ct. 80 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927). For ex am p le, in Tumey, the mayor of a village who served as the judge in a d efen d an t's criminal trial was paid a portion of the court fees and costs only if the d efen d an t was convicted. Tumey, 273 U.S. at 520, 47 S. Ct. at 440. The Supreme C o u r t concluded that a criminal defendant's due process rights are violated when th e judge "has a direct, personal, substantial pecuniary interest in reaching a co n clu sio n against" the defendant. Id. at 523, 47 S. Ct. at 441. Accordingly, the T u m ey Court found a due process violation because the mayor-judge had "a direct, p erso n al, substantial pecuniary interest" in convicting the defendant. Id.
However, in discussing due process, the Tumey Court cautioned that "[a]ll q u estio n s of judicial qualification may not involve constitutional validity" and "[t]h u s matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion." Id. at 523, 47 S. Ct. at 441; see also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S. Ct. 1580, 1 5 8 4 (1986) (stating that "`[m]ost matters relating to judicial disqualification [do] n o t rise to a constitutional level'" (quoting FTC v. Cement Inst., 333 U.S. 683, 7 0 2 , 68 S. Ct. 793, 804 (1948) (second alteration in original)); Del Vecchio, 31 F .3 d at 1391 (Easterbrook, J., concurring) (concluding that "disqualification for `ap p earan ce of impropriety' is a subject for statutes, codes of ethics, and common la w , rather than a constitutional command" and that "[n]one of [the Supreme] C o u rt's constitutional decisions . . . establishes that an `appearance' problem . . . in v a lid a te s a judgment").16 S im ila rly , in Ward, the mayor-judge who presided over traffic court was r es p o n s ib le for the town's finances and, as a judge, imposed traffic court fines that w ere a major part of the town's income. Ward, 409 U.S. at 58, 93 S. Ct. at 82.
The bias in Ward, like Tumey, derived from a pecuniary interest in the litigation, n o t an appearance situation. Thus, Tumey and Ward are not on point.
Davis additionally cites two Supreme Court cases involving contempt p ro ceed in g s that also are totally different from his case. In Offutt v. United States, 3 4
Davis also relies heavily on language from In re Murchison, 349 U.S. 133, 7 5 S. Ct. 623 (1955), which prohibited a judge from performing prosecutorial and ju d icial functions in the same case. The judge acted as a "one-man grand jury," an d two witnesses appeared before him. Id. at 134, 75 S. Ct. at 624. The same ju d g e in Murchison later charged the witnesses with contempt based on their grand ju ry testimony, then tried them and convicted them. Id. at 134-35, 75 S. Ct. at 6242 5 . In fact, the judge, during the contempt proceedings, had recalled his own p erso n al impressions from the grand jury proceedings, so there was explicit e v id e n c e present of the influence of the grand jury proceedings on the judge. Id. at 1 3 8 , 75 S. Ct. at 626. The holding of Murchison is that a judge may not serve as b o th an investigator in a grand jury and as a judge in a contempt proceeding based o n testimony before the grand jury.17 F u rth erm o re, our circuit, as well as the Third and Seventh Circuits, already h a v e rejected the claim that Murchison holds that an appearance of bias violates th e Due Process Clause. Callahan, 427 F.3d at 928-29; Johnson, 369 F.3d at 2606 3 ; Del Vecchio, 31 F.3d at 1371-74. In Callahan, this Court briefly discussed and ag reed with the Third Circuit's decision in Johnson, noting that "the Third Circuit w as asked to read Murchison as holding that the appearance of bias violated the D u e Process Clause." Callahan, 427 F.3d at 928. This Court in Callahan then ag reed with the Third Circuit that "`[Murchison's] holding, as opposed to dicta, is co n fin ed to the basic constitutional principle of prohibiting a judge from ad ju d icatin g a case where he was also an investigator for the government.'" Id. ( q u o tin g Johnson, 369 F.3d at 260) (alteration in original).18 In Callahan's case, h o w ev er, the state trial judge "was not an investigator for the government," and th u s this Court concluded that "Murchison is not on point" and that "[t]he state co u rt's rejection of Callahan's claim based on [the state trial judge's] failure to recu se himself was not `contrary to' or an `unreasonable application of' clearly estab lish ed Supreme Court precedent." 19 Id. at 929.
T h e Seventh Circuit not only interpreted the Supreme Court's Murchison d e c is io n the same way but also considered all the relevant Supreme Court p r e ce d e n t over the past 100 years and concluded that "[t]he Supreme Court has n ev er rested the vaunted principle of due process on something as subjective and tran sito ry as appearance." Del Vecchio, 31 F.3d at 1371-72. I n reviewing Supreme Court precedent, we note that the Supreme Court has u s e d language, albeit in dicta, that endorses the importance of an appearance stan d ard in the judicial process. See Murchison, 349 U.S. at 136, 75 S. Ct. at 625 ("[T ]o perform its high function in the best way `justice must satisfy the ap p earan ce of justice.'" (quoting Offutt, 348 U.S. at 14, 75 S. Ct. at 13)); Tumey, 2 7 3 U.S. at 532, 47 S. Ct. at 444 ("Every procedure which would offer a possible tem p tatio n to the average man as a judge to forget the burden of proof required to c o n v ic t the defendant, or which might lead him not to hold the balance nice, clear, a n d true between the state and the accused denies the latter due process of law.").20 T h e Supreme Court also has observed, albeit in dicta too, that "[a]ll questions of ju d ic ia l qualification may not involve constitutional validity" and, specifically, that "m atters of kinship . . . would seem generally to be matters merely of legislative d iscretio n ." Tumey, 273 U.S. at 523, 47 S. Ct. at 441. In any event, the Supreme C o u rt has told us that under § 2254(d)(1) we must look to Supreme Court holdings, n o t dicta. Williams, 529 U.S. at 412, 120 S. Ct. at 1523.
A p p aren tly recognizing that the Supreme Court's holdings have not ad d ressed the appearance of partiality, much less kinship issues in pre-trial juvenile co u rt proceedings, Davis contends that our analysis of the contours of the Due P r o c es s Clause's requirement of a fair and impartial tribunal should be informed b y the kinship disqualification standard in the federal recusal statute, 28U.S.C. § 4 5 5 , and our decision in Potashnick interpreting § 455. This Court concluded in P o tash n ick that the district court judge should have recused where his father was a s en io r partner in the law firm representing the plaintiff because, under § 455(b)(5)(iii), a partner in a law firm related within the third degree to a judge alw ays will have an interest that could be substantially affected by the outcome of a proceeding involving the partner's law firm. Potashnick, 609 F.2d at 1113.
Thus, in addition to the kinship relationship in Potashnick, the judge's father, as a la w firm partner, had a pecuniary interest in the matter before the district court ju d g e .21 M o r e importantly, this Court and other circuits uniformly have concluded th a t the federal recusal statute establishes stricter grounds for disqualification than th e Due Process Clause. See United States v. Alabama, 828 F.2d 1532, 1540 n.22 (1 1 th Cir. 1987) (addressing a district court judge's failure to recuse under 28 U .S .C . §§ 144 and 455, rather than the Due Process Clause, "because the statutory g r o u n d s for disqualification are stricter than the requirements of due process"); see also United States v. Sypolt, 346 F.3d 838, 840 (8th Cir. 2003) (stating that the f ed e r al recusal statute "reaches farther than the due process clause"); United States v . Couch, 896 F.2d 78, 81 (5th Cir. 1990) (stating that "section 455 and the Due P ro cess Clause are not coterminous"). To be sure, judges properly are held to stricter ethical codes of judicial conduct than simply the constitutional minimum stan d ard s. But a § 455 violation stemming from the appearance standard does not au to m atically mean the defendant was denied constitutional due process. And alth o u g h there may certainly be areas where the requirements of § 455 and the Due P ro cess Clause overlap in assuring a fair and impartial tribunal (such as actual bias, fo r example), nothing in Potashnick, a § 455 case, mentions, much less analyzes, th e Due Process Clause.
In any event, our review under § 2254(d)(1) is confined to determining w h eth er the state court decision was an unreasonable application of clearly estab lish ed federal law as determined by the decisions from the Supreme Court in 1 9 8 4 . Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). There is simply no S u p r em e Court holding establishing that the type of appearance problem alleged h ere violates the Due Process Clause or that Davis lacked an impartial tribunal. I n d e e d , the record here shows that: (1) Judge Teel presided over only the pre-trial ju v en ile court proceedings; (2) Judge Teel's brother was one of four attorneys r ep r e se n tin g the State and had no pecuniary interest in the outcome of the case; ( 3 ) Judge Teel ruled in favor of Davis at the first detention hearing; and (4) as D a v is acknowledged at oral argument, nothing about the juvenile court p ro ceed in g s was presented to the jury during Davis's criminal jury trial in the A lab am a Circuit Court. There is no claim by Davis of any actual bias by Judge T eel or any legal or evidentiary error in any of Judge Teel's pre-trial rulings.
Given the Supreme Court's precedent in 1984 and the facts of this case, we cannot s ay that the decision by the Alabama Court of Criminal Appeals was an u n reaso n ab le application of clearly established federal law to the facts of this case u n d e r § 2254(d)(1).
AFFIRMED.
1 Davis's birthday was March 18, 1961.
2 Davis never has argued that he was not aware at the time of the juvenile court proceedings that Judge Teel and Frank Teel were brothers. of Criminal Appeals and remanded Davis's case for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049 (1982), in which the Supreme Court concluded that the Alabama statute precluding jury instructions on lesser included offenses in capital cases did not prejudice the respondent because the evidence did not warrant an instruction on a lesser included offense. See Alabama v. Davis,
4 In this appeal, the State makes no argument that Davis has failed to exhaust state remedies as to his federal constitutional due process claim. See United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (discussing long-standing rule in this circuit that issues not raised in a party's initial brief on appeal are deemed waived).
5 Section 12-1-12 provides that "[n]o judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity . . . without the consent of the parties entered of record or put in writing if the court is not of record." Ala. Code § 12-1-12.
6 In a related claim, the Alabama Court of Criminal Appeals also denied Davis's claim that his trial attorneys were ineffective for failing to file a motion to recuse Judge Teel given his brother was one of the State's attorneys. Davis v. State, 720 So. 2d 1006, 1014-15 (Ala. Crim. App. 1998). Relying on its reasons for denying Davis's judicial bias claim on direct appeal, the state appellate court noted that Davis still had not presented any evidence of actual bias on the part of Judge Teel and made only conclusory allegations of a conflict of interest. Id. at 1015. The state appellate court further noted that Davis had not shown that the result of the proceedings would have been different if trial counsel had moved to recuse Judge Teel. Id. We do not address this issue, however, because there is no ineffective-assistance-of-counsel claim in this appeal.
7 In Roper, the Supreme Court concluded that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under age eighteen when their crimes were committed. Roper, 543 U.S. at 578, 125 S. Ct. at 1200.
8 The district court also granted Davis a COA as to whether the district court erred in denying his claim that the state trial court erroneously admitted Davis's statements to the police in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The district court properly determined that the Alabama Court of Criminal Appeals' conclusion that Davis was not in custody when questioned by police at the crime scene was not contrary to, or an unreasonable application of, clearly established federal law under 28U.S.C. § 2254(d)(1). Furthermore, Davis has failed to develop, and thus abandoned, any argument that the state court made an unreasonable determination of the facts under 28U.S.C. § 2254(d)(2) by not challenging any specific factual finding in his brief on appeal. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that an issue listed in the statement of facts but not elaborated upon in the initial or reply briefs was abandoned). Thus, we affirm the district court's denial of Davis's Miranda claim.
9 Because Davis filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), this case is governed by 28U.S.C. § 2254, as modified by AEDPA.
10 See Ex parte Jackson, 508 So. 2d 235, 236 (Ala. 1987) (citing Canon 3C(1)(d)(i) and concluding that the judge should have recused where his brother served on the Board of Directors for the defendant corporation because the judge's impartiality might reasonably be questioned). But see Ex parte Clanahan, 72 So. 2d 833, 836, 840 (Ala. 1954) (concluding, in a case before adoption of the Alabama Canons of Judicial Ethics, that the judge was not required to disqualify himself from civil case in which his son-in-law was an attorney for a party because the son-in-law was not a "party" and had no interest in the litigation other than his "pride in the successful outcome" of the case). 11 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
12 The inquiry of whether a judge's "impartiality might reasonably be questioned" under § 455(a) is an objective standard "designed to promote the public's confidence in the impartiality and integrity of the judicial process." Potashnick, 609 F.2d at 1111. 13 The federal recusal statute and the Code of Judicial Conduct do not allow the parties to remit this ground for disqualification. 28U.S.C. § 455(e); Code of Conduct for United States Judges Canon 3(D). But see Model Code of Jud. Conduct R. 2.11(A)(2)(b), (C) (2007) (requiring recusal when a person within the third degree of relationship to the judge is a lawyer in the proceeding, but allowing waiver of this ground for disqualification by the parties).
14 In this appeal, Davis has not argued that the Alabama Court of Criminal Appeals' decision was "contrary to" clearly established federal law, and, as will be shown in our discussion herein, there is no "materially indistinguishable" Supreme Court precedent applying the Due Process Clause that reached an opposite result than the Alabama Court of Criminal Appeals' decision. See Williams, 529 U.S. at 405-06, 120 S. Ct. at 1519-20. 15 Thus, we do not look to the decisions of the lower federal courts in this analysis. Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005) (quoting Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001)), cert. denied,U.S., 127 S. Ct. 348 (2006).
16 The majority in Del Vecchio agreed with the historical analysis of Supreme Court precedent and the conclusion that "the Supreme Court has never rested due process on appearance" in Judge Easterbrook's concurring opinion. See Del Vecchio, 31 F.3d at 1372 n.2.
17 We focus our analysis on Tumey, Ward, Offutt, and Murchison, where disqualification was required, because these are the Supreme Court cases cited by Davis. In several other bias cases, however, the Supreme Court held that the Due Process Clause did not require disqualification. See Withrow v. Larkin, 421 U.S. 35, 47-55, 95 S. Ct. 1456, 1464-68 (1975) (concluding that state medical board could both investigate charges of illegality against a doctor and determine whether to suspend the doctor's license); Ungar v. Sarafite, 376 U.S. 575, 585-88, 84 S. Ct. 841, 847-49 (1964) (concluding that state trial judge did not become "personally embroiled" with trial witness and thus could preside over contempt proceedings arising from the witness's "contemptuous remarks" toward the judge).
18 While not mentioned in Callahan, the Third Circuit also stated that: Even a generalized reading of the [Murchison] holding, that a judge cannot adjudicate a case where he has an interest in the outcome, does not stand for the conclusion . . . that a judge with an appearance of bias, without more, is required to recuse himself sua sponte under the Due Process Clause. Johnson, 369 F.3d at 260. 19 While the police were interrogating Callahan at the Sheriff's office, Callahan's father asked attorney Fred Lybrand to speak with Callahan. Callahan, 427 F.3d at 908. The police refused because Callahan had not requested a lawyer and Lybrand had said he did not represent Callahan. Id. Lybrand and Judge Monk then went to the Sheriff's office. Id. Judge Monk entered the interrogation room, explained to Callahan his Miranda rights, and asked if he wanted to speak to Lybrand. Id. at 908-09. Callahan responded that he did, and the interrogation stopped. Id. at 909. Callahan later moved for Judge Monk to recuse himself from Callahan's trial because the defense intended to call Judge Monk as a witness if the State tried to admit Callahan's statements from the interrogation. Id. at 911. Judge Monk denied Callahan's motion to recuse and request to call him as a witness, and presided over Callahan's first and second jury trials. See id. at 911-16.
20 We read the Supreme Court's dicta in these cases as essentially indicating that the appearance of bias in certain circumstances can be so substantial and the motive or incentive for bias so strong as to create a presumption of actual bias that may be constitutionally intolerable under the Due Process Clause. See Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994). However, to date the Supreme Court has never set aside a judgment under the Due Process Clause based on an appearance-of-bias standard.
21 Davis also cites the Seventh Circuit's similar decision in SCA Services v. Morgan, 557 F.2d 110 (7th Cir. 1977), which concluded that a district court judge should have recused where his brother was a partner at the law firm representing one of the parties. SCA Servs., 557 F.2d at 117.
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This document cites
- U.S. Court of Appeals for the Eighth Circuit - United States of America, Appellee, v. Dennis Lee Sypolt, Appellant., 346 F.3d 838 (8th Cir. 2003)
- U.S. Supreme Court - Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)
- U.S. Supreme Court - Hopper v. Evans, 456 U.S. 605 (1982)
- U.S. Supreme Court - Beck v. Alabama, 447 U.S. 625 (1980)
- U.S. Supreme Court - Withrow v. Larkin, 421 U.S. 35 (1975)
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