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Federal judge who entered state judgment against inmate can’t hear inmate’s habeas petition

Robertson Fowler, III, v. Keith Butts, 7th Circuit Court of Appeals Case No. 15-1221, 2016 WL 3916012, 7/20/16

The Seventh Circuit holds a federal judge is always disqualified from hearing a collateral attack on a judgment he or she entered or affirmed as a state judge.

Fowler filed a federal habeas petition contending that the lawyer in his direct appeal in state court was ineffective for failing to make an argument that his sentence was illegal under a state supreme court decision (State v. Mills) decided while his appeal was pending. The federal district judge who heard and denied his habeas petition sentenced Fowler during her tenure as a state trial court judge. She shouldn’t have handled Fowler’s habeas case:

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. (Slip op. at 2-4).

There are also two significant judicial disqualification holdings for federal practitioners. First, the court rejects Indiana’s claim that Fowler forfeited his chance to object to the judge by not asking for a writ of mandamus to have her substituted. The Seventh Circuit has held since United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985), that disqualification under 28 U.S.C. § 455(a), which applies in this case, can be forfeited, while disqualification under § 455(b) cannot be forfeited. But the court’s recent cases have expressed “some unease” about the distinction between the two statutes, as it lacks a textual basis, and no other circuit makes the distinction. The court therefore overrules that holding in Balistrieri and the decisions following it. (Slip op. at 4-9).

Second, the court rejects the claim that Fowler forfeited his objection to the judge by not filing a disqualification motion, and overrules Seventh Circuit precedent requiring such a motion, e.g., United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001). The judge, not the litigant, is expected to know the facts and law governing disqualification, and § 455(e) makes it clear that disqualification can be waived only after full disclosure on the record, which didn’t happen here. (Slip op. at 9-12).

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