Andrew Suh v. GUY PIERCE, Warden

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3946
ANDREW SUH,
Petitioner-Appellant,
v.
GUY PIERCE, Warden,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:03-cv-07014—Rebecca R. Pallmeyer, Judge.
ARGUED OCTOBER 20, 2010—DECIDED JANUARY 18, 2011
Before FLAUM, RIPPLE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Fifteen years ago, after a bench
trial in the Circuit Court of Cook County presided over
by Judge John Morrissey, Andrew Suh was convicted of
first-degree murder and armed robbery and sentenced
to consecutive terms of 80 and 20 years. In a state court
petition for postconviction relief, Suh argued that his
convictions and sentences were tainted, in violation of
the due process clause, because Judge Morrissey had an
undisclosed relationship with the family of the murder
victim. The state courts denied Suh’s petition. He then

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2 No. 09-3946
sought a writ of habeas corpus in federal court, pursuant
to 28 U.S.C. § 2254, but that petition was also denied. See
Suh v. Mote, 2009 WL 3681645 (N.D. Ill. Nov. 3, 2009). Suh
now appeals.
Notably, however, Suh now maintains that he is
entitled to relief simply because the situation might
have looked improper to an outside observer, despite
the fact that Judge Morrissey was actually unaware of
the relationship between his acquaintances and the
murder victim when the case went to trial. The govern-
ment, on the other hand, contends that this argument
was not presented previously and that, in any event, it
lacks merit. We begin with the facts as found by the
state courts. See 28 U.S.C. § 2254(e)(1).
In late September 1993, Robert O’Dubaine was shot
twice and killed as he entered the garage of his home
in Chicago’s Bucktown neighborhood. O’Dubaine lived
in the home with his girlfriend, Catherine Suh, who is
Andrew Suh’s older sister. During a subsequent police
interview, Catherine admitted to luring O’Dubaine into
the garage for a waiting gunman. Catherine was arrested
but fled after being released on bond. A jury later con-
victed her in absentia of first-degree murder and armed
robbery. She was sentenced to life in prison.
Shortly after Catherine’s arrest, Suh, a 19-year-old
college student at the time, was interviewed by Chicago
police. He eventually confessed to murdering O’Dubaine,
explaining that his sister had repeatedly sought his help
in a plan to kill O’Dubaine because he was physically
abusing her and spending her money. When Catherine
lured O’Dubaine into the garage, Suh, who had been

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No. 09-3946 3
According to the private investigator, O’Dubaine was 1
born “Robert Koron” and changed his last name to a Gaelic
derivative of “Divane” several years before his death.
hiding there for some time, shot O’Dubaine twice in the
head. Suh then took O’Dubaine’s wallet and car, and
drove away.
Suh appealed his convictions and sentences, advancing
arguments that are not at issue here. The state appel-
late court affirmed the convictions but modified the
sentences to run concurrently. The state supreme court
denied leave to appeal. People v. Suh, 729 N.E.2d 503 (Ill.
2000). Suh then filed two postconviction petitions in
state court, again making arguments that are not
relevant here. The state appellate court affirmed the
dismissals of both petitions, and the state supreme court
denied leave to appeal. People v. Suh, 786 N.E.2d 197
(Ill. 2002).
In the meantime, Patrick Lavery, a playwright research-
ing Suh’s story, interviewed a nun, Sister Barbara
McCarry, who had been the principal of Suh’s grammar
school and was knowledgeable about the case. Ac-
cording to Lavery, Sister McCarry said that the judge at
Suh’s trial (Morrissey), was close to the victim’s family.
A private investigation subsequently revealed that
Judge Morrissey: (1) served on the Cook County First
Municipal District Court from 1983 to 1988 with
O’Dubaine’s uncle, Judge John Divane; and (2) attended
high school with William (Bill) Divane, the cousin of
O’Dubaine’s mother.1

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4 No. 09-3946
Suh then filed a third postconviction petition in
state court, arguing that Judge Morrissey’s ties to the
family of the victim created a constitutionally imper-
missible potential for judicial bias. The state trial court
denied Suh’s request to use discovery to investigate the
allegations, so his lawyers relied on evidence gathered
through voluntary telephone interviews with Judge
Morrissey and others.
In his interview, Judge Morrissey stated that he was
unaware of any relationship between O’Dubaine and
the Divane family. He said that William Divane was a
casual friend, but he did not know that William was
related to O’Dubaine. According to Suh’s lawyers, Walter
Morrissey (who, despite his name, is not related to the
judge), a high school classmate of William Divane and
Judge Morrissey, initially stated that those two men
saw each other regularly and were long-time friends.
The day after the interview, however, Walter called
Suh’s lawyers back and said that William actually had
no relationship with Judge Morrissey.
Judge Morrissey also told the lawyers that Judge
Divane never contacted him about Suh’s case. Judge
Divane was interviewed and agreed that he never spoke
to Judge Morrissey about the case. In fact, Judge Divane
said that he did not even know Judge Morrissey. And
during her interview, Sister McCarry said that, contrary
to Lavery’s assertions, she had no knowledge of any
connection between Judge Morrissey and the Divane
family.
The state trial court denied Suh’s petition, and he
appealed. Although the discovery ruling was the

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No. 09-3946 5
Suh actually filed his federal habeas petition at the same 2
time as his third postconviction petition in state court in order
to comply with the applicable one-year statute of limitation.
See 28 U.S.C. § 2244(d). The district judge then stayed the
federal petition pending the resolution of the state petition.
main focus of his appellate brief, Suh also argued that
his petition should have been granted because “[t]he
only reasonable inference from Judge Morrissey’s close
friendship with Bill Divane is that Bill Divane must
have told Judge Morrissey of the murder of his cousin,
and Judge Morrissey could not have failed to recognize
that he was trying that case—Andrew Suh’s case—in
his courtroom.” In affirming the denial of Suh’s petition,
the state appellate court cited both Illinois and United
States Supreme Court case law on judicial bias but rea-
soned that, because Judge Morrissey “was unaware of
any relationship between the victim and the Divane
family,” further discovery would have been futile, and
“unfairness was not probable during [Suh’s] trial.”
In his petition for leave to appeal to the state supreme
court, Suh repeated the arguments made to the state
appellate court. The supreme court denied Suh’s petition.
People v. Suh, 875 N.E.2d 1122 (Ill. 2007). Suh then filed
a federal habeas petition in the district court and again2
requested permission to take several depositions. The
district judge subsequently granted the request with
respect to Judge Morrissey, Judge Divane, William
Divane, and Sister McCarry.
The depositions were largely consistent with the earlier
interviews. Sister McCarry admitted to meeting with

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6 No. 09-3946
Lavery and discussing Suh’s case but she said she had
no recollection of ever mentioning a connection between
Judge Morrissey and the victim’s family. Rather, Sister
McCarry believed that Lavery was trying to discredit
Judges Morrissey and Divane.
Judge Morrissey testified to being acquainted with
Judge Divane, although their courtrooms were in
separate buildings. Judge Morrissey estimated that he
spoke to Judge Divane some five or ten times at judicial
conferences between 1983 and 1988 and maybe at a
dinner for judges. Judge Divane, however, testified that
he could not recall ever meeting or speaking to Judge
Morrissey and that he would not recognize him if they
did meet.
Judge Morrissey also testified to being a casual acquain-
tance of William Divane. Both men said that they were
high school classmates but not close friends and that
they have met occasionally at high school reunions and
charity functions. Judge Morrissey testified that he most
recently spoke to William at a golf event in 2007, where
they briefly discussed the investigation relating to
Suh’s 1995 trial. William Divane, however, testified that
he could not recall whether he had seen Judge Morrissey
after 2002 and that they never had a conversation
about Suh.
Judge Morrissey lastly testified that, at the time of the
trial, he did not know that either William or Judge Divane
was related to O’Dubaine. He also said that he did not
communicate with anyone from the Divane family, or
anyone acting on the family’s behalf, about the case
before or during the trial.

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No. 09-3946 7
After the depositions, Suh filed an amended petition
with the district court. There, he argued that Judge
Morrissey’s connections to the family of the victim estab-
lished an impermissible “appearance of bias” in viola-
tion of the due process clause. Specifically, he chal-
lenged the reasonableness of the state court’s factual
findings on the existence of a relationship between
Judge Morrissey and the Divanes. He also argued that
the state court unreasonably applied the law to the
facts, speculating that the discrepancies among the testi-
mony of Judge Morrissey and the Divanes indicated a
cover-up:
And the only reason for such conflicting testimony
must be some attempt to downplay, or escape all
together, the real nature or extent of the relationship.
This, of course, leads to the conclusion that . . . the
relationship must be one that rises to the level where
the temptation to be bias [sic] either could—or
did—affect Judge Morrissey’s ability to be fair and
impartial.
After summarizing the evidence, the district judge deter-
mined that: (1) the relationships were tangential and
therefore would not require recusal under the due
process clause; and, moreover, (2) no evidence sug-
gested that Judge Morrissey even knew that his acquain-
tances were related to the victim, so the court would
not presume an unreasonably high temptation for bias.
We review the district court’s findings of fact for
clear error and its legal conclusions, as well as mixed
questions of law and fact, de novo. Harding v. Walls, 300

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8 No. 09-3946
F.3d 824, 827 (7th Cir. 2002). Under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), a
federal court may issue a writ of habeas corpus only if
the decision of the last state court to examine the merits
of the petitioner’s claim: (1) “was contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States,” or (2) “was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
Before we turn to the merits, however, there is a pre-
liminary issue of procedural default. The government
contends that the argument Suh is now making—
namely, that due process required Judge Morrissey’s
recusal even though he was unaware of the connection
between the Divanes and O’Dubaine—was never
presented to the state courts. “Adequate presentation of
a claim requires a petitioner to present both the opera-
tive facts and the legal principles that control each claim
to the state judiciary.” Stevens v. McBride, 489 F.3d 883,
894 (7th Cir. 2007).
As we previously noted, Suh’s argument today differs
from the one he made in the state courts. In his state
court appellate brief, Suh argued that his postconviction
petition should have been granted because “[t]he only
reasonable inference from Judge Morrissey’s close friend-
ship with Bill Divane is that Bill Divane must have
told Judge Morrissey of the murder of his cousin.” In
other words, Suh maintained that there was actual bias,

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No. 09-3946 9
Suh argues that the government waived its procedural 3
default argument by not mentioning it in the district court. But
(continued...)
or at least the potential for actual bias, because
Judge Morrissey knew that O’Dubaine was related to
Bill Divane as well as several other people he knew rather
well. The appellate court accordingly determined that
unfairness was improbable based, in part, on a factual
finding that Judge Morrissey “was unaware of any rela-
tionship between the victim and the Divane family.” Suh’s
petition for leave to appeal to the state supreme court
repeated this argument.
Indeed, Suh persisted in this position before the
district court. There, he argued that Judge Morrissey’s
connections to the family of the victim established an
impermissible “appearance of bias” in violation of the
due process clause. But by “appearance of bias,” Suh
was still referring to the potential for actual bias
based on facts known to the judge at the time. He
asserted that the conflicting deposition testimony in-
dicated a cover-up, and therefore “the relationship must
be one that rises to the level where the temptation to be
bias [sic] either could—or did—affect Judge Morrissey’s
ability to be fair and impartial.” (Emphasis added.) As
a result, in rejecting Suh’s petition, the district judge
found that the evidence was insufficient to rebut the
state court’s factual finding that Judge Morrissey was
unaware of the purported relationship. Under these
circumstances, an unreasonably high temptation for
bias could not be presumed.3

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10 No. 09-3946
(...continued) 3
because Suh first advanced his modified “appearance of
bias” argument on appeal, this is the government’s first oppor-
tunity to challenge it. See Jones v. Hulick, 449 F.3d 784, 787
(7th Cir. 2006).
Suh argues that, because the state appellate court never 4
adjudicated his “appearance of bias” claim, its decision is not
entitled to any AEDPA deference. See Harrison v. McBride,
428 F.3d 652, 665 (7th Cir. 2005). Consistent with both Illinois
and Supreme Court case law, the appellate court addressed
(continued...)
Now, on appeal, Suh has abandoned the argument
that there was a cover-up and he does not dispute the
state court’s factual finding that Judge Morrissey was
unaware of the relationship between the Divanes and
O’Dubaine. Rather, he contends that the due process
clause requires recusal—even in the absence of any po-
tential for actual bias—where it might “appear” to an
outsider that the judge had an interest in the outcome
of the case. The distinction is critical because, as we’ll
discuss later in more detail, while disqualification is
required based on an “appearance of bias” where there
is a high risk of actual bias, without that risk disqual-
ification is not necessary. Because Suh never presented
the latter theory in state court, it is procedurally defaulted.
See Stevens, 489 F.3d at 893-94 (refusing to consider a
particular supporting argument that was not presented
in state court).
But even assuming that we’re splitting hairs and
Suh’s argument was preserved, it lacks merit. Although4

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No. 09-3946 11
(...continued)
whether actual bias was “probable.” But it did not pass on
the argument Suh now advances because, as we just discussed,
that argument was not presented previously. (Indeed, for this
reason, Suh could not—and did not—argue in the district court
that AEDPA deference was inapplicable.) In any event, we
need not decide the issue because Suh’s argument fails under
any standard.
“[a] fair trial in a fair tribunal is a basic requirement of
due process,” In re Murchison, 349 U.S. 133, 136 (1955),
“most matters relating to judicial disqualification d[o] not
rise to a constitutional level.” FTC v. Cement Institute, 333
U.S. 683, 702 (1948). “Thus matters of kinship, personal
bias, state policy, remoteness of interest would seem
generally to be matters merely of legislative discretion.”
Tumey v. Ohio, 273 U.S. 510, 523 (1927). But recusal is
required where the judge has “a direct, personal, sub-
stantial, pecuniary interest” in a case. Id.
In addition, the Supreme Court has identified certain,
specific instances requiring recusal. One is “where a
judge had a financial interest in the outcome of a case,
although the interest was less than what would have
been considered personal or direct at common law.”
Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2259-
61 (2009) (citing Tumey, Ward v. Monroeville, 409 U.S. 57
(1972), and Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813
(1986)). Another is “where a judge had no pecuniary
interest in the case but was challenged because of a
conflict arising from his participation in an earlier pro-
ceeding.” Caperton, 129 S. Ct. at 2261-62 (citing Murchison
and Mayberry v. Pennsylvania, 400 U.S. 455 (1971)).

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12 No. 09-3946
Recusal also may be required outside of these specific
instances if the probability of actual bias is high enough.
See Caperton, 129 S. Ct. at 2263-64 (requiring recusal
where “a person with a personal stake in a particular
case had a significant and disproportionate influence in
placing the judge on the case by raising funds or
directing the judge’s election campaign when the case
was pending or imminent” because that situation in-
volved “a serious risk of actual bias”). But the issue
before us is not whether a potentially biasing influence
was strong enough to be constitutionally intolerable.
Rather, because Suh is not challenging the state court’s
factual finding that the judge was unaware of the rela-
tionship between his acquaintances and the murder
victim, the only question is whether recusal was required
in the absence of any possibility of actual bias—that is,
based solely on how the situation might have “appeared”
to an outside observer. The Supreme Court has never
held, or even intimated, that the due process clause
requires recusal under such circumstances, so we must
answer the question in the negative.
Moreover, one of our own decisions has already ad-
dressed and rejected a very similar argument, albeit in a
hypothetical:
Suppose a judge does not know a close relative has a
financial interest in a case he tries. To the outside
observer aware of the interest but unaware of the
judge’s lack of knowledge, it would look bad for
the judge to try that case. But if the judge does not
even know about the relative’s financial interest, how

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No. 09-3946 13
Interestingly, Suh cited Del Vecchio approvingly in his 5
district court brief. But, to repeat, there he was still arguing
that Judge Morrissey must have been aware of the relation-
ship between the Divanes and O’Dubaine.
could he be tempted to undermine the case? And if
no actual incentive exists for the judge to be biased—if
the judge does not have reason to be partial—how
could the judge’s presiding over the trial deprive a
party of his right to a fair trial before an impartial
judge?
Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363,
1371 (7th Cir. 1994). Suh attempts to limit Del Vecchio5
by seizing on general statements in our subsequent deci-
sions about the “appearance of bias.” See, e.g., Franklin v.
McCaughtry, 398 F.3d 955, 960-61 (7th Cir. 2005) (“[T]he
Supreme Court has decided that . . . the appearance of
bias violate[s] due process principles.”); Bracy v. Schomig,
286 F.3d 406, 411 (7th Cir. 2002) (“[O]rdinarily . . . the
appearance of bias is sufficient to disqualify a judge.”). As
made clear by the cases we cited for those propositions
(Tumey, Murchison, Lavoie, etc.), however, by “appearance
of bias,” we meant situations in which there was at
least some risk of actual bias based on facts known to
the judge at the time.
Without any controlling case law in his arsenal, Suh
relies on Supreme Court decisions involving the federal
recusal statute, 28 U.S.C. § 455, which requires a judge
to disqualify himself whenever “his impartiality might
reasonably be questioned.” Indeed, language from those

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14 No. 09-3946
decisions bolsters Suh’s argument. Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 859 (1988), for
example, says that “[t]he judge’s lack of knowledge of
a disqualifying circumstance may bear on the question
of remedy, but it does not eliminate the risk that ‘his
impartiality might reasonably be questioned’ by other
persons.” But the fact remains that, there, the Court was
interpreting § 455, not the due process clause. So Liljeberg
and its progeny are not on point. See Johnson v. Carroll, 369
F.3d 253, 262 (3d Cir. 2004) (“Liljeberg neither holds nor
suggests that an appearance of bias on the part of a
federal judge, without more, violates the Due Process
Clause.”); see also Davis v. Jones, 506 F.3d 1325, 1336 (11th
Cir. 2007) (collecting cases and finding that “the fed-
eral recusal statute establishes stricter grounds for dis-
qualification than the Due Process Clause”). Left with no
legal legs to stand on, Suh’s petition cannot be granted.
For the foregoing reasons, the judgment of the
district court is AFFIRMED.
1-18-11

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