100 F.3d 610 (8th Cir. 1996), 94-3902, Bannister v. Delo

Docket Nº:94-3902
Citation:100 F.3d 610
Party Name:Alan Jeffrey BANNISTER, Appellant, v. Paul K. DELO, Appellee.
Case Date:November 14, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 610

100 F.3d 610 (8th Cir. 1996)

Alan Jeffrey BANNISTER, Appellant,


Paul K. DELO, Appellee.

No. 94-3902

United States Court of Appeals, Eighth Circuit

November 14, 1996

Submitted: November 15, 1995

Rehearings and Suggestions for Rehearing En Banc Denied January 22,[1997*]

Page 611

Appeal from the United States District Court for the Western District of Missouri.

Page 612

Christopher Schneider, Kansas City, MO, arged (Bruce E. Baty, on the brief), for appellant.

Stephen Hawke, Assistant Attorney General, Jefferson City, MO, argued, for appellee.

Before WOLLMAN, BRIGHT and HENLEY, Circuit Judges.[**]

HENLEY, Circuit Judge.

Alan J. Bannister, a Missouri death-row inmate, appeals from a judgment of the district court1 dismissing a successive petition for a writ of habeas corpus filed pursuant to 28 U.S.C Section(s) 2254. We affirm.2

I. Background

In 1983 a jury convicted Bannister of the capital murder of Darrell Reustman and he was sentenced to death. His conviction and sentence were affirmed on direct appeal, State v. Bannister, 680 S.W.2d 141 (Mo. 1984) (en banc), cert. denied, 471 U.S. 1009 (1985). His motions for state post-conviction relief were denied, e.g., Bannister v. State, 726 S.W.2d 821 (Mo. Ct. App.), cert. denied, 483 U.S. 1010 (1987), as was a section 2254 petition for a writ of habeas corpus, Bannister v. Armontrout, 807

Page 613

F.Supp. 516 (W.D. Mo. 1991). We affirmed the denial of habeas relief. Bannister v. Delo, 4 F.3d 1434 (8th Cir. 1993), cert. denied, 115 S.Ct. 418 (1994) (Bannister I).

Bannister thereafter filed a subsequent petition. The district court dismissed that petition, holding that the claims in it were either successive or abusive and Bannister had not demonstrated cause and prejudice under Wainwright v. Sykes, 433 U.S. 72 (1977), or produced clear and convincing evidence of his actual innocence under Sawyer v. Whitley, 505 U.S. 333 (1992), so as to permit habeas review.3 Bannister v. Delo, No. 94-1141-CV-W-9 (W.D. Mo. Dec. 5, 1994) (order). While Bannister's appeal was pending, the Supreme Court decided Schlup v. Delo, 115 S.Ct. 851 (1995). In Schlup, as to guilt-phase actual innocence claims, the Court rejected the "clear and convincing" Sawyer standard and adopted the more lenient "more likely than not" standard of Murray v. Carrier, 477 U.S. 478, 496 (1986). Id. at 867. On the state's motion, we remanded the case to the district court "for consideration of appellant's guilt-phase claims in light of Schlup v. Delo, and for reconsideration of such other of the District Court's previous rulings challenged by appellant's appeal, as the District Court determines is necessary and proper." (citation omitted). We noted that the "District Court may take additional evidence and conduct such evidentiary hearings as it deems necessary."

On remand, Bannister filed a motion to disqualify Judge Bartlett under 28 U.S.C. Section(s) 144 and 455(a), alleging that the judge was biased against successive habeas petitions. Judge Bartlett denied the motion. The judge also denied Bannister's request for an evidentiary hearing to establish cause and prejudice or actual innocence and, reaffirming much of its previous order, dismissed his petition. Bannister v. Delo, 904 F.Supp. 998 (W.D. Mo. 1995). This appeal follows.

II. Disqualification

Before addressing Bannister's arguments concerning the district court's dismissal of the habeas petition, as an initial matter we address his contention that the court erred in denying his motion for disqualification under 28 U.S.C. Section(s) 144 and 455(a). Section 144 provides that "whenever a party . . . files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias against him or in favor of any adverse party, such judge shall proceed no further . . . ." Section 455(a) provides that a judge "shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned."

In support of the disqualification motion, Bannister filed an affidavit in which he stated that he had learned that Judge Bartlett had recused himself from ruling on a successive habeas petition of another death-row inmate, Doyle Williams, and that the judge's comments at the recusal hearing demonstrated he was biased against successive habeas petitions. At the hearing, Judge Bartlett stated:

I am persuaded that I cannot be fair. As I told counsel, I worked very hard on the first round of this habeas, believing that I had done what I could do to bring into one lawsuit the federal claims, and believing that was consistent with the rational, fair criminal justice system.

I now find that we are embarked on another round of litigation which promises to be more time-consuming than the first. I do not think that's consistent with a rational criminal justice system. I don't think it's consistent with any principles that the Supreme Court has enunciated should govern this litigation.


I have concluded that in this case it is not personal views about the merits of the argument being raised, it is not my personal views about the state's right to determine to decide what penalty will be assessed for certain crimes, . . . . I have a strong and abiding faith in the rational

Page 614

system. My personal belief is causing impatience in the belief that this proceeding has gone beyond the limits of rationality. And it is, I am afraid of coloring my views on resolving the issues.

Trancript of Recusal Proceedings in Williams v. Delo, No. 91-0230-CV-W-9, in Bannister's Supplemental Appendix at 3. Judge Bartlett denied Bannister's motion to disqualify, explaining his "frustrations" in the Williams case "were related solely to my work on th[at] case." Order of April 13, 1995 at 2.

"In this circuit, whether disqualification is required in a particular case is committed to the sound discretion of the district judge, and we review only for an abuse of discretion." In re Kansas Pub. Employees Retirement Sys., 85 F.3d 1353, 1358 (8th Cir. 1996) (In re KPERS). "This is so because '[t]he judge presiding over a case is in the best position to appreciate the implications of those matters alleged in a recusal motion.'" Id. (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert denied, 490 U.S. 1102 (1989)). "Accordingly, we presume Judge Bartlett is impartial, and [Bannister] bears 'the substantial burden of proving otherwise.'" Id. (quoting Pope v. Federal Express Corp., 974 F.2d 982, 985 (8th Cir. 1992)).

Moreover, we must keep in mind that in Liteky v. United States, 510 U.S. 540, 55O (1994), the Supreme Court made clear that "[n]ot all unfavorable disposition towards an individual (or his case) is properly described by th[e] terms" bias or prejudice. Rather, "[t]he words connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . ., or because it is excessive in degree . . . ." Id. Thus, bias can be shown if a judge's remarks or opinions "reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Id. at 555. However, "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Id. Also "[n]ot establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display." Id. at 555-56.

On appeal, Bannister does not argue that Judge Bartlett demonstrated actual bias, but argues he should have disqualified himself under section 455(a) because his comments at the Williams recusal hearing created an appearance of bias against successive habeas petitions. "Under Section(s) 445(a), we consider whether the judge's impartiality might reasonably be questioned by the average person on the street who knew all the relevant facts of a case." In re KPERS, 85 F.3d at 1358. We agree with the state that a reasonable person who knew all the circumstances--including the reasons why Judge Bartlett recused himself in the Williams case--would not question the judge's impartiality in this case.

Following the above-quoted comments, Judge Bartlett explained that he was recusing himself because he had become frustrated with the manner in which the Williams case had been proceeding. The judge noted that he had expressed frustration with the case the previous week during a telephone conference, which had been convened because in papers filed shortly before a scheduled evidentiary hearing, Williams appeared to be waiving the hearing. During the conference, Judge Bartlett expressed his frustration not only at Williams' apparent change in tactics, but also at the timing and the length of the papers. Judge Bartlett told Williams' counsel, "it looks to me like, you're trying to figure out how to drown everybody in paper and make this thing absolutely as complex, drawn out and as difficult as possible." Supp. App. at 29. The judge further told counsel, "what happens next week I don't know frankly . . . . [I]f there's this much stuff that has been raised I need to look at it over the weekend and Monday I'll be informed and we'll sit down and decide what to be doing." Id. at 34.

Page 615

On Monday the judge recused himself. He explained that over the weekend he had struggled to distinguish between what he believed was appropriate institutional impatience with successive habeas petitions and inappropriate...

To continue reading