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Counsel not ineffective for failing to seek recusal of trial judge

Raymond E. King v. Randy Pfister, 7th Circuit Court of Appeals No. 14-3389, 2016 WL 4446105, 8/24/16

The presiding judge at King’s 2004 murder trial was a former public defender who represented King in a criminal case in 1986. KIng’s pretrial pro se efforts to get the judge recused were rebuffed. After exhausting his state court remedies, King filed a habeas petition arguing his state trial and appellate lawyers were ineffective for failing to litigate a claim that the trial judge should have been substituted from King’s case. The Seventh Circuit rejects the argument.

King can’t show that the state appellate court’s denial of King’s argument was based on an unreasonable application of clearly established federal law. That’s because the state court’s decision was based on a resolution of state law, not federal law. The state court held that even if trial and appellate counsel were deficient for failing to litigate the substitution issue, the failure wasn’t prejudicial because their litigation wouldn’t have succeeded. The litigation wouldn’t have succeeded there’s insufficient evidence to meet the standard for substitution under the state substitution statute, which requires showing the judge harbored “actual prejudice” resulting in “animosity, hostility, ill-will, or distrust” toward King himself. (Slip op. at 3-6). “It is well‐established that on habeas review, a federal court cannot disagree with a state court’s resolution of an issue of state law. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62 , 67–68 (1991).” (Slip op. at 8-9).

Nor could King have prevailed on an alternative claim that trial counsel was ineffective for failing to seek automatic substitution (which doesn’t require a showing of “actual prejudice”) within the time frame for doing so because King can’t establish prejudice based on that failure:

Even if King’s counsel performed deficiently in failing to pursue automatic substitution .., nothing in this record shows that King was prejudiced by counsel’s inattention. King can show prejudice only if he demonstrates that the judge who heard his case was biased. In order to do that, he must overcome “a presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975). Nothing indicates that the trial court was biased against King; to the contrary, the record shows that the judge had no independent recollection of him one way or the other. Furthermore, the evidence against King was overwhelming. ….

You might be wondering whether King had a claim based on the appearance of bias, which (as discussed here) can be the basis for a claim that the defendant’s due process right to an impartial judge has been violated. Any argument on this ground is forfeited, as King’s focus on ineffective assistance means he never fairly presented a due process claim to the state court. (Slip op. at 11-12). A related argument citing the state’s judicial code requirement that judges disqualify themselves if their “impartiality might reasonably be questioned” is rejected as undeveloped. (Slip op. at 11 n.1).

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