Charlie Clemm Ons v. WILLIAM J. WOLFE, Supt.

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 02-4457
CHARLIE CLEMM ONS,
Appellant
v.
WILLIAM J. WOLFE, Supt.;
DISTRICT ATTORNEY OF THE
COUNTY OF DAUPHIN; ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA, *GERALD J.
PAPPERT
*(Amended - See Clerk’s Order dated
3/10/04)
On Appeal from the United States
District Court for the Middle District of
Pennsylvania
(D. C. No. 02-cv-00561)
District Judge: Hon. William W.
Caldwell
Argued May 5, 2004
Before: SLOVITER and FUENTES,
Circuit Judges, and POLLAK, District
Judge*
(Filed: July 29, 2004)
Patricia C. Shea (Argued)
David R. Fine
Kirkpatrick & Lockhart
Harrisburg, PA 17101
Attorneys for Appellant
Francis T. Chardo (Argued)
James P. Barker
Deputy District Attorney
Office of District Attorney
Harrisburg, PA 17101
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The District Court judge who
dismissed Appellant’s petition for a writ of
habeas corpus had been the state court
judge who presided over his criminal trial.
The principal question we consider is
whether the judge should have sua sponte
recused from the habeas proceeding.
* Hon. Louis H. Pollak, Senior
United States District Judge for the
Eastern District of Pennsylvania,
sitting by designation.

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I.
Appellant Charlie Clemmons’
conviction arose out of a 1980 incident of
“road rage,” in which Clemmons shot and
killed another motorist following an
altercation stemming from a traffic
incident. App. at 10. Clemmons was
convicted by a jury in the Court of
Common Pleas of Dauphin County,
Pennsylvania of first-degree murder.
Then-state judge William W. Caldwell
presided over the 1981 state court trial
and, following Clemmons’ conviction,
Judge Caldwell sentenced him to life
imprisonment for first-degree murder. 18
Pa. Const. Stat. Ann. § 2502. Clemmons
filed a series of four petitions in state court
for collateral relief under the Post
Conviction Relief Act (PCRA), 42 Pa.
Cons. Stat. Ann. §§ 9541 et seq., and its
predecessor statute. Each petition was
denied, and the denials of the first three
petitions were affirmed by the state
Superior Court. The fourth petition was
dismissed.
On February 7, 2002, Clemmons
filed a habeas corpus petition in federal
court pursuant to 28 U.S.C. § 2254. His
petition was eventually assigned to Judge
Caldwell, who by then had been appointed
to the United States District Court for the
Middle District of Pennsylvania. On
September 27, 2002, Clemmons applied
for appointment of counsel. On November
27, 2002, Judge Caldwell issued an
opinion in which he acknowledged that he
had “presided at petitioner’s trial” in state
court. App. at 10. He then denied
Clemmons’ habeas petition as untimely
and all other pending motions as moot.
There was no specific reference to
Clemmons’ request for counsel.
Clemmons filed an application for
a Certificate of Appealability (COA) to
this court. We granted the COA directed
to the following question: whether the
district court judge was required to recuse
himself from hearing the federal habeas
corpus proceedings attacking the trial and
conviction over which he presided when
he was a state court judge. The same day
we appointed counsel to represent
Clemmons in this matter against Appellees
William J. Wolfe, District Attorney of the
County of Dauphin, and Pennsylvania
Attorney General Gerald J. Pappert.1
Three months later we amended the COA
to add the following issue: whether the
district court judge abused his discretion
by deciding the merits of Appellant’s
petition for writ of habeas corpus without
first addressing Appellant’s request for
counsel.
On appeal, Clemmons contends that
Judge Caldwell was required to recuse
himself sua sponte in Clemmons’ 28
U.S.C. § 2254 habeas action challenging
the trial and conviction over which Judge
Caldwell formerly presided as a state court
judge. Although Clemmons does not
explicitly so state, it appears he argues that
1 The list of Appellees was
amended per Order of the Clerk of Court
dated March 10, 2004.

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this presents a legal question over which
we would have plenary review. Second,
Clemmons contends that the District Court
abused its discretion by failing to address
the merits of Clemmons’ application for
appointment of counsel before dismissing
the motion as moot.
II.
The relevant federal statute, 28
U.S.C. § 455(a), provides that “[a]ny
justice, judge, or magistrate judge of the
United States shall disqualify himself in
any proceeding in which his impartiality
might reasonably be questioned.” 28
U.S.C. § 455(a).2 The Supreme Court has
stated that the purpose of this provision is
“to promote public confidence in the
integrity of the judicial process.” Liljeberg
v. Health Servs. Acquisition Corp., 486
U.S. 847, 860 (1988).
Clemmons claims that Judge
Caldwell created the appearance of
impropriety by failing to recuse himself in
the habeas proceeding because he had
presided over the state trial. Because
Clemmons did not object to Judge
Caldwell’s failure to recuse in the habeas
proceeding, a “plain error standard of
review applies.” United States v.
Dalfonso, 707 F.2d 757, 760 (3d Cir.
1983) (citations omitted). We may
overlook the failure to object where the
“error seriously affects the fairness,
integrity or public reputation of judicial
proceedings.” United States v. Olano, 507
U.S. 725, 732 (1993) (internal quotation
marks and citations omitted). On its face,
the error complained of in this case – a
federal judge sitting in review of the
propriety of the state proceedings
conducted by that judge – seriously affects
the fairness and public reputation of the
judicial proceedings, and thus we proceed
to consider whether the habeas judge
shou ld have sua sponte recused
notwithstanding Clemmons’ failure to
raise the issue in the habeas proceeding.
We have previously stated that the
“public’s confidence in the judiciary . . .
may be irreparably harmed if a case is
allowed to proceed before a judge who
appears to be tainted.” In re Kensington
Int’l Ltd., 353 F.3d 211, 220 (3d Cir.
2003) (emphasis in original) (internal
quotation marks and citation omitted).
When Congress amended Section
455(a) in 1974, it replaced the statute’s
formerly subjective standard with an
objective one, stating:
Subsection (a) of the
a m e n d e d s e c t io n 4 5 5
contains the general, or
catch- all, provision that a
judge shall disqu alify
himself in any proceeding in
which “his impartiality
m i g h t r e a s o na bl y b e
questioned.” This sets up an
objective standard, rather
than the subjective standard
2 Clemmons disclaims any reliance
on 28 U.S.C. § 144, which requires a
showing of bias on the part of the judge.

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set forth in the
e x i s t i n g s t a t u t e
through use of the
p h r a s e “ i n h i s
opinion.”
H.R. Rep. No. 93-1453 (1974), reprinted
in 1974 U.S.C.C.A.N. 6351, 6354-55.
The bedrock principle of a
hierarchal judiciary that “[n]o judge shall
hear or determine an appeal from the
decision of a case or issue tried by him” is
embedded in 28 U.S.C. § 47, a statute
inapplicable here because its plain
language only applies to cases on
“appeal,” rather than habeas petitions. The
absence of a directly applicable statute in
no way diminishes the importance to a
litigant of review by a judge other than the
judge who presided over the case at trial.
Of course, a habeas action is not an appeal
from the state court action. The state
courts provide the appeal process.
However, a habeas action provides the
criminal defendant with the opportunity to
have a federal court review the state
proceedings for constitutional infirmities.
In this respect, there is no reason why the
same rules governing independence,
conflict of interest, or appearance of
partiality should not apply.
Although this court has not
confronted the precise issue at bar, at least
two3 other circuits have addressed this
issue and stated that a federal judge should
recuse himself or herself from hearing
habeas petitions if s/he participated in the
petitioner’s state court proceedings. An
almost identical issue was considered by
the Seventh Circuit in Russell v. Lane, 890
F.2d 947 (7th Cir. 1989). In that case, the
district court judge considered a habeas
petition even though that judge had
previously been a member of the panel of
the state appellate court that affirmed the
conviction. On appeal, the Court of
Appeals for the Seventh Circuit stated that
the judge in question:
was being asked to find that
h e h a d a f f i r m e d a n
unconstitutional conviction,
and, implicitly, that by
doing so he had become
c o m p l i c i t i n s e n d i n g
[petitioner] to prison in
violation of [petitioner’s]
constitutional rights . . . . A
federal habeas corpus
proceeding brought by a
state prisoner is not a
request to a state judge to
reconsider his ruling. It
follows the exhaustion of
3 Although the parties have called
our attention to two decisions of the
Sixth Circuit involving similar issues to
the case at bar, Morgan v. Money, 210
F.3d 372 (6th Cir. 2000) (unpublished)
and Taylor v. Campbell, 831 F.2d 297
(6th Cir. 1987) (unpublished), we decline
to rely upon them because they are both
designated as unpublished and hence not
precedential.

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the petitioner’s state
remedies and is
addressed to a judge
who was not a
m e m b e r o f t h e
state-court panel that
a f f i r m e d t h e
p e t i t i o n e r ’ s
conviction and who
had no emotional
c o m m i t m e n t t o
v i n d i c ating s t a te
j u s t i c e a s
administered in the
petitioner’s case.
Id. at 948. The court concluded that the
petitioner “was entitled to have his habeas
corpus petition heard by a judge who had
not participated in his conviction” and thus
it remanded the matter to permit the
petitioner the opportunity to file a motion
to vacate the order of the district judge that
dismissed several of petitioner’s claims.
Id.
Similarly, in Rice v. McKenzie, 581
F.2d 1114 (4th Cir. 1978), the Fourth
Circuit considered whether a federal
district judge, who formerly presided as
the chief justice of the state supreme court
that reviewed the defendant’s claim, could
consider those claims in the context of a
habeas proceeding in the federal forum
without running afoul of Section 455(a).
The court noted that under 28 U.S.C. § 47
a federal judge may not adjudicate the
appeal of an issue or case which s/he tried
as a lower court judge because a
reasonable person might doubt the
impartiality of a judge in such a position.
Id. at 1117 (“To say the least, it would be
unbecoming for a judge to sit in a United
States Court of Appeals to participate in
the determination of the correctness,
propriety and appropriateness of what he
did in the trial of the case.”). Although it
recognized that Section 47 was not at issue
in the case before it at that time, the court
stated that “[t]he same principle is
involved” because “in federal habeas
corpus cases the federal district judges do
sit in review of the proceedings in the state
courts.” Id. That review is designed to be
an independent one, as Justice Blackmun
noted when he stated Ҥ 2254 motions
anticipate that the federal court will
undertake an independent review of the
work of the state courts, even where the
federal claim was fully and fairly litigated”
in the state court. Reed v. Farley, 512 U.S.
339, 362 (1994) (Blackmun, J., dissenting)
(emphasis added) (citations omitted).
Appellees contend that Clemmons’
recusal claim should fail because the
record does not show any bias or prejudice
by Judge Caldwell. We certainly agree
that there is no evidence that the judge
exhibited any bias against Clemmons. But
that is not dispositive because actual bias
is not a requisite element for a valid claim
under Section 455(a). In fact, Judge
Caldwell granted Clemmons permission to
amend his habeas petition, which negates
any inference of partiality, the focus of
section 455(a). Therefore, the asserted
absence of actual bias is irrelevant; the
mere appearance of bias still could
diminish the stature of the judiciary. See

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In re Kensington Int’l Ltd., 353 F.3d at
220.
Appellees correctly note that twenty
years have passed since the time that Judge
Caldwell presided over Clemmons’ state
court trial and they argue that Clemmons
raised the recusal claim as a matter of
strategy only after Judge Caldwell denied
his habeas petition. They rely on Martin v.
Monumental Life Insurance Co., 240 F.3d
223, 235-237 (3d Cir. 2001), where we
rejected a claim that the district court
judge, who had recused in a related case,
violated Section 455(a) because he did not
recuse himself in a second proceeding
“involv[ing] the same principa ls,
witnesses, [and] insurance products.” Id.
at 231. The basis for the judge’s first
recusal was that he formerly had been a
partner at the law firm that represented the
defendant. However, the district judge had
resigned from the firm and terminated his
financial arrangements with it six years
prior to that case, and had never
represented the defendant while at the
firm. In light of these facts, we stated:
In the instant matter, the
relationship between the
trial judge and the [judge’s
former] firm had terminated
several years before the case
commenced; there was no
blood relationship between
the trial judge and anyone in
the [judge’s former] firm;
there is no claim of any bias
by the trial judge; and the
trial has been concluded.
We see no error in the
District Court’s refusal to
grant the motion [to recuse].
Id. at 237. In particular, we emphasized
that the appellant in that case did not
challenge any of the judge’s factual
findings at trial and only moved to recuse
the judge “after a lengthy and arduous
trial” in which the judge “invested
substantial judicial resources.” Id. at 236,
237. We speculated that “all of these
considerations suggest that plaintiff’s
motion is a desperate effort to overturn an
adverse decision.” Id. at 236.
Martin is inapposite. Martin
involved a judge who was challenged on
the basis of his prior institutional
affiliation on a matter on which he did not
work. Here, the issue is the appearance of
partiality because a judge was asked to
review allegations regarding his own
rulings at the state court trial. Moreover,
unlike in Martin, where the district court
judge had expended considerable time and
effort in a “lengthy and arduous trial,” 240
F.3d at 236, Judge Caldwell issued only a
single decision denying Clemmons’
motions and did not hold any hearings. In
short, there is little risk of inefficiency.
S e c o n d , a l t h o u gh M a r t i n
emphasized the passage of time between
the state court trial and the federal habeas
proceeding, nothing in the text of Martin
suggests that this factor is dispositive.
Although the passage of time would be
relevant in a situation in which the recusal
issue does not involve the federal judge’s

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review of his or her actions as a state
judge, the case before us raises the latter
issue and the passage of time cannot
overcome a reasonable person’s doubts
about a judge’s impartiality in judging his
or her own past works.
Appellees’ contention that the error,
if any, in the district judge’s failure to
recuse did not cause Clemmons prejudice
because any district court judge who had
been assigned the case ultimately would
have found Clemmons’ habeas petition to
be untimely is beyond the point. In
Liljeberg, the Supreme Court instructed
that, in determining whether a decision
should be vacated based on a federal
judge’s failure to recuse when he had an
interest in the subject matter, the court
should “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” while bearing in mind that
“justice must satisfy the appearance of
justice.” 486 U.S. at 864 (internal
quotation marks and citation omitted).
The Supreme Court has never considered
a situation such as the one before us.
Regardless of the merits of
Clemmons’ habeas petition, we find
dispositive that the District Court’s failure
to recuse has created an appearance of
impropriety that runs “the risk of
undermining the public’s confidence in the
judicial process.” Id.; see also Alexander
v. Primerica Holdings, Inc., 10 F.3d 155,
162 (3d Cir. 1993) (“[T]he public’s
confidence in the judiciary, which may be
irreparably harmed if a case is allowed to
proceed before a judge who appears to be
tainted,” requires that “justice must satisfy
the appearance of justice.”) (quoting In re
Asbestos Litig., 977 F.2d 764, 776, 782
(3d Cir. 1992)). It is important to note that
nothing in the record suggests that Judge
Caldwell, a conscientious and hard-
working judge, proceeded with any sort of
ill motive. However, the focus of our
inquiry is not his actual bias, but rather,
whether a reasonable person might ascribe
such a motive to any judge tasked with
reviewing his past state court rulings in a
federal habeas case. For the reasons set
forth, we conclude that we are obliged to
vacate the judgment and remand to a
different district court judge.
III.
As we noted above, the federal
statute on recusals does not specifically
cover the situation raised by this case. In
previous situations, we have decided that
we should use our supervisory powers to
fill a gap on important procedural or
ethical matters on a variety of issues.4
4 See, e.g., Forbes v. Township of
Lower Merion, 313 F.3d 144, 149 (3d
Cir. 2002) (we “exercise our supervisory
power to require that future dispositions
of a motion in which a party pleads
qualified immunity include, at minimum,
an identification of relevant factual
issues and an analysis of the law that
justifies the ruling with respect to those

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The Supreme Court has explicitly
recognized that the courts of appeals “have
broad powers of supervision” over federal
proceedings. Bartone v. United States,
375 U.S. 52, 54 (1963) (per curiam); see
also United States v. Hasting, 461 U.S.
499, 505-07 (1983) (referring to
supervisory authority of federal courts
generally); id. at 513 n.1 (Stevens, J.,
concurring) (same); United States v.
Payner, 447 U.S. 727, 734-36 & n.7
(1980).
Because of the absence of any
applicable statute, and in order to avoid the
recurrence of this situation, we now
exercise our supervisory power to require
that each federal district court judge in this
circuit recuse himself or herself from
participating in a 28 U.S.C. § 2254 habeas
corpus petition of a defendant raising any
issue concerning the trial or conviction
over which that judge presided in his or
her former capacity as a state court judge.5
issues.”); United States v. Eastern Med.
Billing, Inc., 230 F.3d 600, 607-13 (3d
Cir. 2000) (canvassing several
supervisory power decisions in Third
Circuit); Vadino v. A. Valey Eng’rs, 903
F.2d 253, 259 (3d Cir. 1990) (exercising
supervisory power “to require the district
courts in this circuit to accompany grants
of summary judgment hereafter with an
explanation sufficient to permit the
parties and this court to understand the
legal premise for the court's order.”);
Quality Prefabrication, Inc. v. Daniel J.
Keating Co., 675 F.2d 77, 81 (3d Cir.
1982) (ruling that “a dismissal of a
complaint with prejudice as a Rule 37
sanction must be accompanied by some
articulation on the record of the court's
resolution of the factual, legal, and
discretionary issues presented”). In
particular, we have issued supervisory
rules on the issue of regarding the
appearance of judicial impropriety. See,
e.g., Alexander, 10 F.3d at 167
(exercising supervisory power to reassign
ERISA case to a different district judge);
Haines v. Liggett Group, Inc., 975 F.2d
81, 98 (3d Cir. 1992) (“[T]he appearance
of impartiality will be served only if an
assignment to another judge is made, and
we will, pursuant to our supervisory
power, so direct.”).
5 Of course, nothing in this opinion,
which relates only to the role of a federal
judge pursuant to 28 U.S.C. § 2254, is
designed to apply to the role of a federal
judge under 28 U.S.C. § 2255. In fact,
Rule 4(a) of the Rules Governing § 2255
Habeas Proceedings for United States
District Courts directs that a habeas
petition “be presented promptly to the
judge of the district court who presided
at the movant’s trial and sentenced him .
. . .” In contrast to the position of a
federal judge reviewing a § 2255
petition, who is effectively reconsidering
his rulings at the trial, a federal judge
reviewing a § 2254 petition cannot
reconsider the actions taken by a state
judge, even if s/he had been the state
judge. In his or her new capacity, s/he
would be reviewing the actions of

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We thus shall vacate the District Court’s
decision to deny Clemmons’ habeas
petition as well as his petition for
appointment of counsel6 and we will
remand with instructions that the case be
assigned to a different district court judge.
another court. The difference is
institutional rather than ethical. There is
no basis to apply the supervisory rule
enunciated here to the § 2255 situation.
6 Because we will vacate and
remand each of the District Court’s
decisions based on the possible
appearance of bias, we need not reach
the merits of Clemmons’ argument that
the District Court’s denial of his motion
for appointment of counsel was deficient
for failure to include a statement of
reasons.

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