Fowler v. Butts

• Decision Date: 20 July 2016
• Docket Number: No. 15-1221,15-1221
• Citation: 829 F.3d 788
• Parties: Robertson Fowler, III, Petitioner–Appellant, v. Keith Butts, Superintendent, New Castle Correctional Facility, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

829 F.3d 788

Robertson Fowler, III, Petitioner–Appellant

v.Keith Butts, Superintendent, New Castle Correctional Facility, Respondent–Appellee.

No. 15-1221

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2016

Decided July 20, 2016

Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Petitioner–Appellant.

Kelly A. Loy, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent–Appellee.

Before Easterbrook, Kanne, and Sykes, Circuit Judges.

Easterbrook

, Circuit Judge.

Robertson Fowler pleaded guilty in Indiana to unlawful possession of a firearm by a “serious violent felon” who was also a habitual offender. The judge sentenced him to 30 years' imprisonment: 15 for the possession offense and 15 extra on account of his criminal history.

While his case was on appeal, the Supreme Court of Indiana held that a prior conviction used to establish status as a “serious violent felon” cannot also be used to establish status as a habitual offender. Mills v. State , 868 N.E.2d 446 (Ind.2007)

. Fowler's appellate lawyer did not bring

Mills

to the attention of the intermediate appellate court, which affirmed his sentence. Fowler v. State, 2007 Ind. App. Lexis 2015 (Aug. 31, 2007). On collateral review the same court held that it would not have done any good to rely on Mills, because Fowler's plea bargain waived reliance on the approach that Mills adopted. Fowler v. State , 977 N.E.2d 464 (Ind.App.2012). Fowler then filed a federal collateral attack under 28 U.S.C. § 2254, contending that he had received ineffective assistance of counsel in his initial appeal. The district court denied this petition, relying on the state judiciary's conclusion that Fowler had waived the benefit of Mills, and that given the waiver Fowler did not suffer any prejudice from counsel's omission. 2015 U.S. Dist. Lexis 6419 (S.D. Ind. Jan. 21, 2015). Fowler contends in this court that the state's 2012 appellate decision was wrong: that he had not waived the benefit of the Mills theory, and that a careful lawyer therefore would have relied on Mills in the initial appeal.

We do not address the substance of Fowler's argument, because a procedural problem takes precedence. District Judge Magnus-Stinson, who denied Fowler's federal collateral attack, also was the person who sentenced Fowler during her time on the state's bench. We held in Weddington v. Zatecky , 721 F.3d 456, 461–63 (7th Cir.2013)

, that reasonable observers would doubt the impartiality of a former state judge who is asked to assess the validity of her own decision after coming to the federal bench, and that 28 U.S.C. § 455(a) therefore requires the case to be heard by a different federal judge.

Indiana asks us to distinguish Weddington

on the ground that Fowler contests the performance of his appellate counsel rather than the decision by Judge Magnus-Stinson, who sentenced him before Mills was released. But Fowler's challenge remains one to his 30-year sentence, and if he prevails he will be entitled to a new appeal in the state system in which Indiana's appellate judiciary will have to decide whether the sentence was properly imposed, given the terms of state law and Fowler's plea bargain.

Federal judges routinely hear challenges to their own convictions and sentences under 28 U.S.C. § 2255

. Section 2255(a) designates the motion as one in the criminal case, which implies the propriety of assignment to the original judge. Federal judges routinely are asked to change their minds (as in motions to alter the judgment under Fed. R. Civ. P. 59 and 60, or petitions for rehearing on appeal), and no one supposes that such a request disqualifies the judge under § 455(a). But the state-federal sequence is different. Section 2254 is designed to ensure that a fresh pair of eyes looks at the matter, from a different perspective. That goal cannot be accomplished if the federal judge who entertains the petition under § 2254 also was the state judge who imposed or affirmed the judgment now being contested.

The only sensible approach is all or none: a federal judge can hear a collateral attack on a conviction or sentence she imposed or affirmed as a state judge, or she cannot. Trying to work through the details of the petitioner's federal theory in relation to the judge's role on the state bench would be a formula for uncertainty, offering reasons to doubt the adequacy of the federal system. For the reasons given above and in Weddington

, “all” is better than “none”: a federal judge always is disqualified from hearing a collateral attack on a judgment he or she entered or affirmed as a state judge. Judge Magnus-Stinson should have turned this proceeding over to a different judge.

Indiana maintains, however, that Fowler forfeited his opportunity to have the case heard by someone else, because he did not ask this court to issue a writ of mandamus that would have prevented Judge Magnus-Stinson from deciding the case.

Ever since 1985 this circuit has distinguished between disqualification under § 455(a)

and disqualification under § 455(b). See United States v. Balistrieri , 779 F.2d 1191, 1204–05 (7th Cir.1985). We held in Balistrieri that § 455(b) creates personal rights that can be vindicated on appeal but that § 455(a), which concerns the appearance of impropriety, creates only systemic interests—important to the judicial system but not individual litigants—which may be vindicated only before final decision in the district court. Once the district judge has acted, Balistrieri holds, any bad appearance has come to pass; and when there is no actual bias the litigant has no personal interest in upsetting an untainted judgment. Many decisions since Balistrieri decline to consider arguments that depend on § 455(a). See, e.g., United States v. Johnson , 680 F.3d 966, 979 (7th Cir.2012) ; United States v. Diekemper , 604 F.3d 345, 351–52 (7th Cir.2010) ; United States v. Troxell , 887 F.2d 830, 833 (7th Cir.1989).

Some of our recent decisions have shown unease about Balistrieri 's

distinction between § 455(a) and § 455(b). Weddington found a reason to remand that did not depend on § 455(a) and added that, once the case returned to the district court, it must be assigned to a different judge. More recently, a panel departed from Balistrieri because only a short time had elapsed between when mandamus could have been sought and the entry of final judgment. United States v. Herrera

–

Valdez , 826 F.3d 912, 2016 WL 3361723 (7th Cir.2016), Op. at 791–93. One member of this court has called for Balistrieri 's overruling, see United States v. Boyd , 208 F.3d 638, 649–52 (7th Cir. 2000) (Ripple, J., dissenting). Judge Ripple observed that no other circuit has followed Balistrieri, that several have rejected its approach, and that it appears to be inconsistent with two decisions by the Supreme Court that have decided § 455(a) issues initially raised by appeal rather than mandamus. See Liteky v. United States , 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ; Liljeberg v. Health Services Acquisition Corp. , 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988).

We have resurveyed the appellate precedents. The situation identified by Judge Ripple in 2000 still holds: No court other than the Seventh Circuit refuses to consider § 455(a)

arguments on appeal. Some of the other circuits reject this circuit's doctrine after citing our decisions; others simply ignore Balistrieri and its successors. See, e.g., Hardy v. United States , 878 F.2d 94, 98 n.4 (2d Cir. 1989) (“Unlike the Seventh Circuit, this Circuit will entertain a section 455(a) recusal claim on direct review”); United States v. Cooley , 1 F.3d 985, 995–96 & n. 9 (10th Cir.1993) ; In re School Asbestos Litigation , 977 F.2d 764, 777–78 & n. 12 (3d Cir.1992) ; Diversified Numismatics, Inc. v. Orlando , 949 F.2d 382, 384 (11th Cir.1991). At least three other circuits have considered § 455(a) issues on appeal without discussion. See, e.g., United States v. Payne , 944 F.2d 1458, 1476–77 (9th Cir.1991) ; United States v. Wade , 931 F.2d 300, 302–05 (5th Cir.1991) ; United States v. Mitchell , 886 F.2d 667, 671 (4th Cir.1989). We are the odd circuit out. We observed in United States v. Corner , 598 F.3d 411, 414 (7th Cir.2010) (en banc), that being alone among the circuits justifies giving the subject a fresh look. We have done that and conclude that Balistrieri and its successors must be overruled to the extent they hold that arguments under § 455(a) cannot be raised on direct appeal.

Liteky

and Liljeberg do not themselves doom Balistrieri. The question was not raised by the litigants in either case and was not discussed by the Justices. The Court may have assumed the propriety of deciding § 455(a)

questions on appeal, but an assumption is not a holding.

The problem with Balistrieri

is its lack of textual support in § 455. Here is the full text of § 455(a) and (b) :

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or

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