Corie Miller v. ROY L. HENDRICKS, Warden; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-5489
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CORIE MILLER,
Appellant,
v.
ROY L. HENDRICKS, Warden;
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY,
Appellees.
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 03-cv-02651)
District Judge: Honorable William J. Martini
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Argued April 9, 2008
Before: SMITH, HARDIMAN and COWEN, Circuit Judges.
(Filed: June 12, 2008 )
Mary Gibbons (Argued)
600 Mule Road
Toms River, NJ 08757-0000
Attorney for Appellant

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Maura K. Tully (Argued)
Office of Attorney General of New Jersey
Division of Criminal Justice
P.O. Box 086
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625-0000
Attorney for Appellees
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Corie Miller appeals from an order of the United States District Court for the
District of New Jersey dismissing his petition for a writ of habeas corpus. Miller argues
that the District Judge — the Honorable William J. Martini — should have recused
himself because of a 1995 statement made by Judge Martini on the floor of the United
States House of Representatives while he was serving as a Congressman. We will affirm.
I.
As we write for the parties, we will recount only those facts essential to our
decision.
A jury in New Jersey state court convicted Miller of murdering Cindy Villalba, a
college student who was shot and killed during an attempted armed robbery. After
exhausting his appeals in the state courts, Miller filed a petition for writ of habeas corpus
with the District Court in June 2003, alleging various trial errors, as well as ineffective

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assistance of counsel. Following full briefing, but before the District Court issued its
decision, Miller discovered the following July 25, 1995 floor statement by then-
Congressman Martini:
Mr. Speaker, I rise today to address the House of Representatives with
regard to a tragedy that has become far too common in this day and age. I
am referring to the acts of senseless violence committed against our
children that tear at the fabric of our society. On a street in Paterson, NJ, a
town in my congressional district, a young woman’s dream to become a
Wall Street entrepreneur or a scholar was shattered on Friday. She was
attacked by unknown assailants who had approached her and demanded
money. When the young woman told her attackers that she had no money
one of them fired shots through the driver’s side window. She was struck
by the barrage of bullets; her best friend and community were left in tears,
by her side.
Congressman Martini proceeded to identify the young woman as Villalba, and
described her various academic achievements and community service activities. He then
urged Congress and the nation to “summon the strength to dedicate ourselves to ending
crime,” extended his condolences to the Villalba family, and concluded, “[i]t is a shame
when a woman with such a bright future is taken from this world in such a senseless
manner. She will be missed by everyone whose heart she touched and whose life she
brightened.”
Miller claims to have consulted with an attorney as soon as he discovered the
statement, and was advised to file a motion for recusal under 28 U.S.C. § 455. Before he
could do so, however, Judge Martini issued his opinion denying the writ. Miller neither
filed a motion for reconsideration nor requested Judge Martini to recuse himself. Instead,

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Miller raised the issue for the first time in his application for a certificate of appealability
from this Court, which we granted as to one issue: “whether Judge Martini should have
recused himself pursuant to 28 U.S.C. § 455(a) and § 455(b)(1) and (3).”
II.
Where, as here, a party did not seek recusal in the district court, we review for
plain error. See Selkridge v. United Omaha Life Ins. Co., 360 F.3d 155, 166-67 (3d Cir.
2004). Under the plain error standard, a district court’s order may be reversed only where
“[t]here [was] an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’” United
States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995) (alterations in original) (internal citation
omitted). Generally, to “affect substantial rights” an error “must have been prejudicial: It
must have affected the outcome of the district court proceedings.” United States v.
Olano, 507 U.S. 725, 734 (1993). A review of the record must reveal “egregious error or
a manifest miscarriage of justice.” United States v. Lore, 430 F.3d 190, 211 (3d Cir.
2005).
Section 455(a) provides: “Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” If a reasonable observer aware of all the circumstances
“would harbor doubts about the judge’s impartiality under the applicable standard, then
the judge must recuse.” In re Prudential Ins. Co. of Am. Sales Practice Litig. Agent
Actions, 148 F.3d 283, 343 (3d Cir. 1998) (internal quotations and citations omitted). In

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addition, § 455(b) sets forth a number of specific circumstances requiring recusal, two of
which are potentially relevant here. A judge shall recuse “[w]here he has a personal bias
or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding,” 28 U.S.C. § 455(b)(1), or “[w]here 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.” 28 U.S.C. § 455(b)(3). Generally, beliefs or
opinions requiring recusal “must involve an extrajudicial factor,” Antar, 53 F.3d at 574
(citation omitted), and opinions formed “on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994).
In this case, Miller argues that the 1995 floor statement was based upon some
unknown source of “detailed extrajudicial information” available to then-Congressman
Martini. He points out that then-Congressman Martini appeared to be aware of specific
details of the crime and was able to relate information regarding the victim and her
achievements. He also asserts that the statement expresses sympathy for Villalba and her
family. Thus, Miller contends that the statement demonstrates the “personal knowledge
of disputed evidentiary facts” and the “personal bias or prejudice concerning a party” that

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requires recusal under § 455(b)(1). Miller also argues that the statement constituted “an
opinion concerning the merits of the particular case in controversy” made while serving
as a government official, making recusal mandatory under § 455(b)(3). Finally, Miller
asserts that the statement creates circumstances “in which his impartiality might
reasonably be questioned” under § 455(a).
Even assuming for the sake of argument that Judge Martini’s failure to recuse sua
sponte was error, we are confident that it was not the “egregious error” or “manifest
miscarriage of justice” that is required under the plain error standard. Miller’s failure to
present the District Court with an opportunity to address the issue in the first instance
leaves a scant record on which to determine whether a reasonable observer, aware of all
the circumstances, might reasonably question Judge Martini’s impartiality. We are left to
speculate about Judge Martini’s recollection of the statement, the source of the
information contained in the statement, and whether he had any continuing interest or
involvement in the matter. Moreover, a review of the record does not lead ineluctably to
the conclusion that Judge Martini harbored a personal bias or prejudice against Miller.
Congressman Martini never mentioned Miller or even indicated he was aware that he had
been implicated in the crime, referring only to “unknown assailants.” Indeed, the floor
statement could simply be read as a general condemnation of violent crime that would not
warrant recusal. See United States v. Cooley, 1 F.3d 985, 994 n.4 (10th Cir. 1993)
(“[G]enerally stated views, even when expressed strongly, against a wide variety of

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conduct . . . are not unreasonable for a judge, and would not, absent more, disqualify a
judge from sitting on a case involving the same subject matter”). And it is just as
plausible that the information in the statement came not from some “detailed extrajudicial
source of information” available only to then-Congressman Martini, but from newspaper
accounts of the incident. See United States v. Bonds, 18 F.3d 1327, 1330 (6th Cir. 1994)
(recusal not required where judge “reads newspaper articles, magazines, or books that
may relate to a case that may come before him”). Accordingly, we find no egregious
error or manifest miscarriage of justice. Lore, 430 F.3d at 211.
Even if Miller could satisfy the plain error standard, we would not reverse and
remand the case to a new district judge. The remedy for an erroneous denial of a recusal
motion is discretionary. Selkridge, 360 F.3d at 167. We must “consider the risk of
injustice to the parties in the particular case, the risk that the denial of relief will produce
injustice in other cases, and the risk of undermining the public’s confidence in the judicial
process,” id. at 171 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
864 (1988)), and will reverse and remand only where the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. at 166 (quoting
Olano, 507 U.S. at 732).
Here, reversing and remanding the case for assignment to a new judge would
impose a substantial burden on the parties and the District Court for what would be
merely an academic exercise. As counsel conceded at oral argument, Miller’s request for

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a certificate of appealability was denied on the merits. Accordingly, this Court has
already concluded that no reasonable jurist would find that the District Court erred in
denying Miller’s petition for writ of habeas corpus. See Slack v. McDaniel, 529 U.S. 473,
484 (2000) (certificate of appealability should issue only where “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong”). We
will not ask a new district judge to consider the merits of a legal argument that we have
already concluded no reasonable jurist would accept.
For all the foregoing reasons, we will affirm the judgment of the District Court.

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