Ronald N. Johnson v. THOMAS J. CARROLL, Warden; ATTORNEY GENERAL OF THE STATE OF DELAWARE Thomas Carroll

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-2101
____________
RONALD N. JOHNSON
v.
THOMAS J. CARROLL, Warden;
ATTORNEY GENERAL OF
THE STATE OF DELAWARE
Thomas Carroll,
Appellant
____________
Appeal from the United States District
Court
For the District of Delaware
D.C. No.: 02-cv-00562
District Judge: Honorable Joseph J.
Farnan, Jr., Chief Judge
____________
(Argued: February 24, 2004)
Before: RENDELL, BARRY and
ROSENN, Circuit Judges
(Filed May 24, 2004)
Thomas E. Brown (Argued)
Office of Attorney General of Delaware
Department of Justice
820 North French Street
Wilmington, DE 19801
Counsel for Appellant
Joseph M. Bernstein (Argued)
800 North King Street, Suite 302
Wilmington, DE 19801
Counsel for Appellee
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
This appeal raises an interesting
question under the recent enactment of the
Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) pertaining to the
failure of a state judge to recuse himself
because his impartiality might reasonably
be questioned. A grand jury in Delaware
indicted Thomas Carroll for the theft of
property valued in excess of $1000,
possession of a deadly weapon by a person
prohibited, and several other related
crimes. After a trial to a jury, he was
convicted of the weapon charge and the
lesser included charge of aggravated
menacing. He was acquitted of all other
charges. He was sentenced to eighteen
years imprisonment as a habitual offender.
The State Supreme Court affirmed his
conviction and sentence. Johnson v. State,
797 A.2d 1206 (table), 2002 WL 714520
(Del. April 22, 2002).
Without filing any post-conviction
motion in the state court, Johnson filed a
petition for a writ of habeas corpus in the
United States District Court for the District

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of Delaware under 28 U.S.C. § 2254(d).1
The District Court conditionally granted
Carroll’s petition for habeas relief as to his
sentence, concluding that there existed an
appearance of bias on the part of the
sentencing judge. Johnson v. Carroll, 250
F. Supp.2d 395 (D. Del. 2003). The
District Court ordered the State to grant
Johnson a new sentencing hearing. The
State timely appealed. In light of the
stringent provisions of AEDPA, we
reverse and direct the District Court to
dismiss Johnson’s habeas petition.
I.
A.
The relevant facts regarding
Johnson’s conviction and sentence are
undisputed. The charges set forth in the
indictment stemmed from the alleged
kidnaping of his estranged sixteen-year-old
daughter, Karen Vincent, on October 6,
1997.
Immediately before sentencing
Johnson following his conviction, the state
court trial judge held a conference with
both the prosecutor and defense counsel in
his chambers. The judge voluntarily
disclosed that he “had an out-of-court
conversation” with James Liguori, a
Delaware attorney and former state
prosecutor, at a social function at Liguori’s
home. “As you both know Jim Liguori, if
you see him, he talks about cases all the
time.” The judge informed counsel that
Liguori made a comment about Johnson
during their conversation. As related by
the judge, Liguori commented that
Johnson was a “bad guy,” that he had
“threatened” Liguori and his family, and
that Liguori “wanted to see that justice was
done.” The judge assured counsel that he
believed that Liguori’s comment would
not have any impact on his view of the
case or his pending sentencing decision.
Defense counsel at the time, Sandra
Dean, a public defender, who had become
Johnson’s trial counsel mid-way through
trial, voluntarily informed the judge of the
background inform ation re gard ing
Johnson’s alleged threat to Liguori
eighteen years before, in 1981. Liguori,
then a state prosecutor, prosecuted
Johnson in an unrelated matter. Johnson,
having been convicted and imprisoned,
sent a Christmas card to Liguori in 1981.
The Christmas card read: “You had fun in
’81 and will be free in ’83.” Johnson
escaped from prison, and it was debated
then whether he posed a threat,
presumably to Liguori and his family. The
judge told Dean that he had no knowledge
of the background information that she had
just related and commented that it perhaps
explained why Liguori made the comments
about Johnson.
Dean then informed the judge that
the local newspapers had reported the
purported threat at that time and that the
1 The respondent-appellants are
Thomas Carroll, warden of the state
prison where Johnson is jailed, and the
Attorney General of the State of
Delaware. To simplify reference, we
refer to them as the State of Delaware.

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Public Defender’s Office had included the
newspaper clippings among the documents
submitted to the court in relation to
Johnson’s present trial. Dean assured the
judge that Johnson’s 1981 Christmas card
was part of “public record.” The judge
and Dean both agreed that the purported
threat was well documented and that the
documents were all in the “whole file”
earlier submitted to the court.
The state prosecutor, Robert
O’Neill, in turn mentioned his own
“recollection” of Johnson’s purported
threat to Liguori and his family. He then
told the judge that Liguori’s comment
about Johnson’s character was relevant to
the court in meting out the sentence to him
because he was charged as a “habitual
offender” under state law. He informed
the judge further that the court should
consider Johnson’s propensity for violence
and his entire criminal history in
determining the term of sentence. He also
told the judge that Liguori arguably could
be presented as a witness at Johnson’s
sentencing hearing.
Finally, in response to O’Neill’s
question as to whether she intended to file
any motion regarding the ex parte
communication disclosed by the judge,
Dean told the judge she had no such
intention because the alleged incident was
“nothing new,” “a matter of record,”
“happened a long time ago,” and the judge
had indicated that he would not give it
“any undue weight.” Dean told the judge
also that she would discuss the matter with
Johnson and expressed doubt that he
would request a different judge for the
pending sentencing. The judge concluded
the conference by stating that he would not
allow Liguori to be a witness at Johnson’s
sentencing hearing.
B.
Johnson obtained new counsel and
appealed his conviction and sentence. As
to Johnson’s sentence, the Delaware
Supreme Court rejected his claim that the
trial judge had erroneously failed to recuse
himself sua sponte. The court analyzed the
issue first under the Delaware Judges’
Code of Judicial Conduct and found the
situation was not one of those enumerated
in the Code that would mandate recusal.
Johnson v. State, 2002 WL 714520, at *3.
The court analyzed the issue then under a
two-prong test set forth under its prior
decisions. Id. (citing Stevenson v. State,
782 A.2d 249, 255 (Del. 2001); Los v.
Los, 595 A.2d 381, 384 (Del. 1991)).
Under the subjective prong, the court
noted the trial judge’s statement that “I
don’t view [the contact] to have any
impact on my view of the case or my
decision with regard to sentencing,” and
found it sufficient. Under the objective
prong, the court did not find any
“appearance of bias sufficient to cause
doubt as to the judge’s impartiality.”
Specifically, the court observed that the
“[trial] judge did not engage in any active
conduct demonstrating the appearance of
impropriety.” Id. (emphasis added)
(distinguishing this case from Stevenson,
782 A.2d at 251, 257 n.3 (finding
appearance of impropriety when a judge

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who had previous contact with a victim
affirmatively requested that the case be
assigned to him)). The court observed
additionally that Johnson’s previous
counsel at trial admitted, and his new
counsel on appeal did not deny, that the
record in his case available to the trial
court had already contained a more
detailed account of his alleged threat to
Liguori. Id.
The District Court issued an order
and opinion ruling against Johnson as to
his conviction but in favor of him as to his
sentence. Johnson v. Carroll, 250 F.
Supp.2d at 398. Specifically, the court
agreed with Johnson that the trial court
judge erroneously failed to recuse himself
sua sponte from sentencing Johnson
following his voluntary disclosure that he
had received an out-of-court ex parte
communication from a former prosecutor
regarding Johnson. The court agreed that
the failure to do so created an appearance
of bias on the part of the judge in violation
of Johnson’s due process rights under the
United States Constitution.
II.
It is not disputed that Johnson had
exhausted his state remedy prior to his
initiation of the underlying federal habeas
action. It is also not disputed that AEDPA
governs a federal court’s review of
Johnson’s habeas action. The District
Court had subject matter jurisdiction under
28 U.S.C. § 2254. We have appellate
jurisdiction under 28 U.S.C. §§ 1291 and
2253. The question of whether the District
Court appropriately applied the AEDPA
standard of review is a question of law
subject to review by this Court de novo.
Chadwick v. Janecka, 312 F.3d 597, 605
n.6 (3d Cir. 2002).
A.
AEDPA severely circumscribes a
federal habeas court’s review of a state
court decision. AEDPA provides in
relevant part:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant
to the judgment of a State court shall not
be granted with respect to any claim that
was adjudicated on the merits in State
court proceedings unless the adjudication
of the claim—
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d) (emphasis added).
The determination of what constitutes
“clearly established federal law” is a
“threshold question in § 2254 cases.”
Lockyer v. Andrade, 538 U.S. 63, 71
(2003).
The statutory phrase “clearly
established” is defined as follows:
Section 2254(d)(1)’s “clearly established”
phrase refers to the holdings, as opposed to
the dicta, of [the Supreme] Court’s

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decisions as of the time of the relevant
state-court decision. . . . In other words,
“clearly established Federal law” under §
2254(d)(1) is the governing legal principle
or principles set forth by the Supreme
Court at the time the state court renders its
decision.
Id. at 71-72 (citations omitted) (emphasis
added) (internal quotation marks omitted).
The statutory phrase “contrary to”
is defined as follows:
[A] state court decision is contrary
to [the Supreme Court’s] clearly
established precedent if the state
court applies a rule that contradicts
the governing law set forth in [the
Supreme Court’s] cases or if the
state court confronts a set of facts
t h a t a r e m a t e r i a l l y
indistinguishable from a decision
of [the] Court and nevertheless
arrives at a result different from
[the Court’s] precedent.
Id. at 73 (internal quotation marks
omitted).
The statutory phrase “unreasonable
application” is defined as follows:
[U]nder the “unreasonable
application” clause, a federal
habeas court may grant the writ if
the state court identifies the correct
governing legal principle from [the
Supreme] Court’s decisions but
unreasonably applies that principle
to the facts of the prisoner’s case.
The “unreasonable application”
clause requires the state court
decision to be more than incorrect
or erroneous. The state court’s
application of clearly established
l a w m u s t b e o b j e c t i v e ly
unreasonable. . . . It is not enough
that a federal habeas court, in its
independent review of the legal
question, is left with a “firm
conviction” that the state court was
“erroneous.” [The Supreme Court
has] held precisely the opposite:
U n d e r § 2 2 5 4 ( d ) ( 1 ) ’ s
“unreasonable application” clause,
then, a federal habeas court may
not issue the writ simply because
that court concludes in its
independent judgment that the
relevant state-co urt dec ision
applied clearly established federal
law erroneously or incorrectly.
Rather, that application must be
objectively unreasonable.
Id. at 75-76 (citations omitted) (emphases
added) (internal quotation marks omitted).
B.
The District Court acknowledged
that it was bound by AEDPA’s stringent
standard in reviewing the merits of
Johnson’s habeas claims. The court
agreed with Johnson that the Delaware
Supreme Court’s decision was “contrary to
or an unreasonable application of federal
law and an unreasonable application of the
facts in light of the evidence.” Johnson v.
Carroll, 250 F. Supp. 2d at 403.
The District Court and Johnson

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relied on three United States Supreme
Court decisions, In re Murchison, 349 U.S.
133 (1955), Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847 (1988),
and Liteky v. United States, 510 U.S. 540
(1994).2 The Court agreed with Johnson
that the trial judge’s failure to recuse
himself sua sponte gave rise to an
appearance of bias and that the appearance
of bias violated his due process rights.
The Court wrote:
In this case, it appears to the Court
that the Delaware Supreme Court
limited its analysis to the active
conduct of the trial judge, an
analysis which is inconsistent with
the concept of an appearance of
bias. In addition, the Court did not
consider the impact of Liguori’s
comments that “he wanted to see
that justice was done.” In these
circumstances, Liguori’s ex parte
“sentencing recommendation”
could well create a situation in
which a reasonable observer would
q uestion the trial j u d g e ’s
im pa rtia lity. Because th e
Delaware Supreme Court limited
its analysis to the active conduct of
the judge, it did not consider the
reaction of the reasonable observer
and the related risks of injustice to
the parties and undermining the
public’s confidence in the judicial
process that result from the
continued participation of a judge
in a proceeding despite the judge’s
appearance of bias. See Stevenson
[v. State], 782 A.2d [249, 258 (Del.
2001) (en banc)]. Thus, the Court
concludes that the Delaware
Supreme Court decision was not
entirely consistent with federal law
and was not a reasonable
application of the facts in light of
the evidence.
Johnson v. Carroll, 250 F. Supp. 2d at 404
(emphases added).
C.
Johnson has not asserted, and there
is no evidence, that the trial judge
harbored any actual bias toward him. He
argued, and the District Court agreed, that
the ex parte communication created an
appearance of bias and that the appearance
of bias violated his due process rights
under the United States Constitution.
Under the plain language of §
2254(d), as well as the United States
Supreme Court’s case law, we are
presented only with one narrow issue:
whether the Supreme Court has ever held
in any of its decisions existing at the time
of the District Court’s judgment, including
the three cases relied on by Johnson and
the District Court, that an appearance of
2 The District Court also relied on
Stevenson v. State, 782 A.2d 249 (Del.
2001), to support its conclusion.
Because § 2254(d)(1) expressly limits
federal law jurisprudence to decisions by
the United States Supreme Court, the
state court case will be disregarded in our
review.

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bias on the part of a state court judge,
without more, violates the Due Process
Clause of the United States Constitution.
We are not, and cannot be, concerned with
the issues of whether the trial judge should
have recused himself sua sponte or
whether the ex parte communication at
issue was sufficient to constitute an
appearance of bias. We assume that there
was an appearance of bias.
We note first that the District Court
has significantly changed the statutory
language of § 2254(d) in its presentation
of the issue before it. The phrase “clearly
established” was noticeably absent in the
court’s presentation of the § 2254(d)(1)
prong, and the court substituted the
s t a tu t o r y p h r a s e “ u n r e a s o n a b l e
determination of the facts in light of the
evidence” with the phrase “unreasonable
application of the facts in light of the
evidence” in its presentation of the §
2254(d)(2) prong. See Johnson v. Carroll,
250 F. Supp. 2d at 404. Because the
AEDPA standard is strict, the Court’s
omission and deviation were erroneous
and distorted its analysis.
We note also that despite its
presentation of the § 2254(d)(2) prong, the
District Court did not analyze the
Delaware Supreme Court’s decision under
that prong. The reason is obvious: the
decision of the state appellate court did
not, and could not, involve any
“determination of facts” regarding the
undisputed ex parte communication at
issue. Nor did the state court’s decision
involve any “unreasonable application of
the facts,” as expressed by the District
Court. The state court adjudicated
Johnson’s appeal of his sentence under the
Delaware Judges’ Code of Judicial
Conduct and its own case law regarding
the recusal standard for Delaware judges.
As conceded by the District Court
in its later decision to grant the state’s
motion for an enlargement of the stay of its
judgment pending the resolution of this
appeal, its earlier decision granting habeas
relief “was based on an analogy to
Supreme Court cases related to the issue of
recusal under 28 U.S.C. § 455 [for federal
judges] and not on direct precedent related
to the trial judge’s appearance of bias
under the Due Process Clause.” Johnson
v. Carroll, No. 02-562 - JJF, 2003 WL
22136302 at *1 (D.Del. Sept. 10, 2003).
(emphases adde d.) Th is belated
realization was tantamount to an admission
that none of the Supreme Court decisions
relied on by the District Court in its earlier
decision “clearly established” that mere
appearance of bias, without more, violates
the Due Process Clause. Our own reading
of the cases shows that they do not stand
for any such holding, and we are not aware
of any other Supreme Court decision that
has so held.
The Supreme Court held in In re
Murchison, 349 U.S. 133 (1955), that it
was unconstitutional for the same state
judge, after a full hearing in open court, to
punish contempt, previously committed
before him while acting as a one-man
“judge-grand jury” permitted under then
Michigan laws. “It would be very strange

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if our system of law permitted a judge to
act as grand jury and then try the very
persons accused as a result of his
investigations.” 349 U.S. at 137. The
Court concluded that “no man can be a
judge in his own case and no man is
permitted to try cases where he has an
interest in the outcome.” Id. at 136. That
conclusion was based on “the basic
requirement of due process” that the
defendant receive “[a] fair trial in a fair
tribunal.” Id. The Court commented that
although fairness certainly required “an
absence of actual bias,” “our system of law
has always endeavored to prevent even the
probability of unfairness.” Id. The Court
acknowledged that its “stringent rule may
sometimes bar trial by judges who have no
actual bias and who would do their very
best to weigh the scales of justice equally
between contending parties.” Id.
However, “to perform its high function in
the best way justice must satisfy the
appearance of justice.” Id. (internal
quotation marks omitted).
The District Court and Johnson
relied on the above language to support
their conclusion that an appearance of bias
violated the Due Process Clause. In re
Murchison does not stand for that broad
conclusion. Instead, its holding, as
opposed to dicta, is confined to the basic
constitutional principle of prohibiting a
judge from adjudicating a case where he
was also an investigator for the
government. The rest of the language
quoted in the preceding paragraph merely
explains the holding. Even a generalized
reading of the holding, that a judge cannot
adjudicate a case where he has an interest
in the outcome, does not stand for the
conclusion, drawn by the District Court
and Johnson, that a judge with an
appearance of bias, without more, is
required to recuse himself sua sponte
under the Due Process Clause. Johnson
has not alleged, and there is no evidence,
that the trial judge here had a personal
interest in the outcome of the sentence.
The Supreme Court held in Liteky
v. United States, 510 U.S. 540 (1994), that
recusal under 28 U.S.C. § 455(a) was
subject to the limitation known as the
“extrajudicial source” doctrine or factor.
That statute requires a federal judge to
“disqualify himself in any proceeding in
which his impartiality might reasonably be
questioned.” Specifically, the Court
concluded that apart from surrounding
comments or accompanying opinion,
evidencing such “deep-seated favoritism
or antagonism” as would make fair
judgment impossible, judicial rulings alone
“cannot possibly show reliance upon an
extrajudicial source.” Id. at 555. In
addition, opinions formed by the judge on
the basis of facts introduced or events
occurring during current or prior
proceedings are not grounds for a recusal
motion unless they display a similar degree
of favoritism or antagonism. Id.
The Liteky holding is limited to the
interpretation of the recusal standard under
§ 455(a) for federal judges. Facially, it
does not stand for the conclusion, drawn
by the District Court and Johnson, that
appearance of bias alone on the part of a

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state judge makes that judge’s decision
subject to federal habeas review under §
2254(d)(1). To the extent that the holding
is relevant, it undercuts, rather than
supports, Johnson’s claim. Johnson has
not alleged, and there is no evidence, that
the trial judge harbored any deep-seated
antagonism toward him. It is not disputed
that Johnson’s alleged threat to Liguori
was documented in the records available to
the trial judge prior to the sentencing.
Under Liteky, an opinion formed by a
federal judge, which the judge here was
not, on the basis of facts introduced at
trial, would not be grounds for a recusal
motion, even had one been filed by
Johnson.
Similarly, the Supreme Court’s
holding in Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847 (1988), is
limited to an interpretation of the recusal
standard for federal judges under § 455(a),
as it related to the specific facts of the
case. In that case, a federal judge
conducted a bench trial involving a dispute
over the ownership of a corporation
formed by the defendant in that action for
the purpose of constructing and operating
a hospital. The judge issued a verdict in
favor of the defendant. The judge had
been a member of the board of a university
and regularly attended its meetings. At the
time of the trial involving the defendant,
the judge knew that the defendant had
negotiated extensively with the university
regarding the purchase of a piece of real
estate property owned by the university for
the construction of the proposed hospital.
The judge also knew at the time of the trial
that the university had just approved
reopening negotiations with the defendant.
Following two days of trial, the
judge immediately announced his intention
to rule for the defendant. After the trial,
but before issuing the verdict, the judge
did not attend a university board meeting,
which discussed the terms of a sale
agreement with the defendant. The
proposed agreement provided that the
agreement would be void if the defendant
failed to retain the disputed ownership of
the corporation. The judge did not read
the minutes of that meeting until he had
rendered judgment for the defendant.
Under the circumstances of that
case, the Supreme Court concluded that
the judge’s participation in the case
created a strong appearance of impropriety
and plainly violated § 455(a), even if he
lacked actual knowledge of th e
university’s interest in the outcome of the
dispute involving the defendant. Id. at
859. Specifically, the Court held that the
purpose of the statute, to promote public
confidence in the integrity of the judicial
process, did not depend on whether the
judge actually knew of the facts creating
an appearance of impropriety, so long as
the public might reasonably believe that he
knew.3 Id. at 859-60. The Court
3The Court pointed to four facts that
might cause an objective observer to
question the judge’s impartiality and
justify the Court’s decision to affirm the
vacating of the judgment in favor of the

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concluded that the facts of that case
warranted the application of § 455(a)
because the violation was “neither
insubstantial nor excusable.” Id. at 867.
Although the judge did not know of his
“fiduciary interest in the litigation, he
certainly should have known.” Id. at 867-
68.
It is obvious that the Liljeberg
Court’s holding is limited to an
interpretation of §455(a) governing recusal
of federal judges and based on the specific
facts of that case, where the judge’s
putative fiduciary interest in the outcome
of the litigation, as being a member of the
university board, conflicted with his
judicial obligation to be free of actual and
perceived impartiality. Even though the
Court mentioned that the concern for the
integrity of judges had “constitutional
dimensions,” id. at 865 n.12 (citing Aetna
Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
(1986) (citing Murchison, 349 U.S. at
136)), its holding was not based on the
Due Process Clause. Liljeberg neither
holds nor suggests that an appearance of
bias on the part of a federal judge, without
more, violates the Due Process Clause.
In contrast to the federal judge in
defendant under Federal Rule of Civil
Procedure 60(b)(6). First, in view of the
financial importance of the defendant’s
project to the university, it was
“remarkable” that the judge, who had
regularly attended the meetings for the
university board for a decade,
“completely forgot” about the
university’s interest in having a hospital
constructed on its property. Id. at 865.
Second, it was an “unfortunate
coincidence” that although the judge had
regularly attended the university board’s
meetings, he did not attend that particular
post-trial meeting that discussed and
approved the terms of the sale agreement
with the defendant. The minutes of that
meeting were mailed to the judge four
days before he issued judgment; if he had
opened the envelope upon receipt, he
would have been under a duty to recuse
himself before he rendered judgment. Id.
at 866. Third, it was “remarkable,” and
“quite inexcusable,” that the judge failed
to recuse himself after he had finally read
the minutes. “A full disclosure at that
time would have completely removed
any basis for questioning the judge’s
impartiality and would have made it
possible for a different judge to decide
whether the interests—and
appearance—of justice would have been
served by a retrial.” Id. By his silence,
the judge deprived the plaintiff of a basis
for making a timely motion for a new
trial and also deprived it of an issue on
direct appeal. Id. at 867. Finally, when
the plaintiff’s counsel filed its motion to
vacate, the judge still did not
acknowledge that he had known about
the university’s interest both shortly
before and shortly after the trial. Nor did
he indicate an awareness of a duty to
recuse himself after he had read the
minutes. Id.

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Liljeberg, the state trial judge here
voluntarily disclosed the ex parte
communication that he had received from
a non-party prior to sentencing Johnson,
providing him with a basis for making a
timely motion for recusal. In contrast to
Liljeberg, this case is devoid of any
evidence showing a potential conflict of
interest involving fiduciary or pecuniary
interest.
In conclusion, none of the Supreme
Court cases relied on by the District Court,
and we are aware of none, has held or
clearly established that an appearance of
bias on the part of a judge, without more,
violates the Due Process Clause. Because
the position taken by the District Court is
not supported by any United States
Supreme Court case law to date, the
District Court’s grant of habeas relief is
reversible error under AEDPA.
D.
Our sister Courts of Appeals have
rejected arguments similar to those made
by Johnson. The Second Circuit
concluded that § 455(a)’s “appearance of
impropriety standard” is not “mandated by
the Due Process Clause.” Hardy v. United
States, 878 F.2d 94, 97 (2d Cir. 1989).
The Fifth Circuit observed that “section
455 and the Due Process Clause are not
coterminous.” United States v. Couch,
896 F.2d 78, 81 (5th Cir. 1990).
“[C]onduct violative of section 455 may
not [necessarily] constitute a due process
deficiency.” Id. (citations omitted). The
Couch court held that a federal sentence
was not open to collateral review on
constitutional grounds under 28 U.S.C. §
2255 (regarding collateral review of a
federal sentence) unless “an appearance of
impropriety . . . rose to the level of
fundamental defect resulting in a complete
miscarriage of justice.” Id. (internal
quotation marks omitted).
The Seventh Circuit in Del Vecchio
v. Illinois Dept. of Corrections, 31 F.3d
1363 (7th Cir. 1994) (en banc), expressly
rejected the view that an appearance of
bias amounted to a due process violation.
The court acknowledged that “the due
process clause sometimes requires a judge
to recuse himself without a showing of
actual bias, where a sufficient motive to be
biased exists.” Id. at 1371 (citing Tumey
v. Ohio, 273 U.S. 510, 532 (1927); In re
Murchison, 349 U.S. 133, 136 (1955);
Aetna Life Ins. Co. v. Lavoie, 475 U.S.
813, 825 (1986)). “Despite the Supreme
Court’s broad pronouncements about ‘the
appearance of justice,’” the Del Vecchio
court concluded that it “cannot answer the
due process question simply by concluding
that it may have looked bad for [a state
trial judge] to preside at trial.” Del
Vecchio, 31 F.3d at 1371.
The court specifically rejected the
view that “th e Supre me C ourt’s
‘appearance of justice’ language from
Murchison and Aetna as holding that the
due process clause requires judges to
recuse themselves based solely on
appearances.” Id. The court concluded, as
do we, that those Supreme Court decisions
“present no such holding. . . .” Id. The
court observed further:

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The Supreme Court has never rested the
vaunted principle of due process on
something as subjective and transitory as
appearance. Instead, the Supreme Court
simply uses the “appearance of justice”
language to make the point that judges
sometimes must recuse themselves when
they face possible temptations to be
biased, even when they exhibit no actual
bias against a party or a cause.
In short, bad appearances alone do
not require disqualification. . . . When the
Sup r em e Co urt talks a bou t the
“appearance of justice,” it is not saying
that bad appearances alone require
disqualification; rather, it is saying that
when a judge is faced with circumstances
that present “some [actual] incentive to
find one way or the other” or “a real
possibility of bias,” a court need not
examine whether the judge actually was
biased. . . . Absent the incentive for bias,
however, disqualification is not required
despite bad appearance.
Id. at 1371-72 (citations omitted).4 We
agree with the conclusions of our sister
Courts of Appeals.
III.
Because the Supreme Court’s case
law has not held, not even in dicta, let
alone “clearly established,” that the mere
appearance of bias on the part of a state
trial judge, without more, violates the Due
Process Clause, the District Court’s
judgment based on that erroneous view
must be reversed under AEDPA. The case
will be remanded to the District Court with
directions to dismiss Johnson’s petition for
a writ of habeas corpus.
4After an extensive survey of the
Supreme Court decisions involving
disqualifications of judges, the Del
Vecchio court summarized the standard
for disqualifications as follows:
The question is not whether some possible
temptation to be biased exists; instead, the
question is, when does a biasing influence
require disqualification? Consistent with
the common law, we begin in answering
this question by presuming the honesty and
integrity of those serving as adjudicators.
Disqualification is required only when the
biasing influence is strong enough to
overcome that presumption, that is, when
the influence is so strong that we may
presume actual bias. This occurs in
situations . . . in which experience teaches
that the possibility of actual bias is too
high to be constitutionally tolerable. A
court must be convinced that a particular
influence, under a realistic appraisal of
psychological tendencies and human
weakness, poses such a risk of actual bias
or prejudgment that the practice must be
forbidden if the guarantee of due process
is to be adequately implemented.
DelVecchio, 31 F.3d at 1375 (citations
omitted) (internal quotation marks
omitted).

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