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A federal district court judge who previously served as a state court trial judge must recuse himself from hearing any habeas corpus petition brought by a convict whose original state court trial he presided over, the 3rd U.S. Circuit Court of Appeals has ruled. In Clemmons v. Wolfe, a unanimous three-judge panel found that since the federal statute on recusals does not specifically cover such a situation, the appellate court should use its “supervisory powers to fill a gap on important procedural or ethical matters.” Writing for the court, U.S. Circuit Judge Dolores K. Sloviter said: “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 … Section 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.” Sloviter found that Senior U.S. District Judge William W. Caldwell of the Middle District of Pennsylvania should have recused himself from hearing Charlie Clemmons’ habeas petition because he had presided over the 1981 trial in the Dauphin County Court of Common Pleas when Clemmons was convicted of first-degree murder for a “road rage” shooting of another motorist. In an opinion joined by 3rd Circuit Judge Julio M. Fuentes and visiting Senior U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania, Sloviter stressed that the appellate panel found no bias on Caldwell’s part, but it nonetheless found it necessary to reassign the case to avoid any appearance of bias. “It is important to note that nothing in the record suggests that Judge Caldwell, a conscientious and hardworking judge, proceeded with any sort of ill motive,” Sloviter wrote. “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,” Sloviter wrote. Caldwell, who is 79, was appointed to the federal bench by President Reagan in 1982 after serving 12 years on the Dauphin County Court of Common Pleas. He took senior status in 1994. Just one year before he was appointed to the federal bench, Caldwell presided over a 1981 trial in which a jury found Clemmons guilty of first-degree murder. Caldwell later sentenced him to life imprisonment. Over the next two decades, Clemmons pursued a series of appeals in the state courts, including four petitions under the Pennsylvania Post Conviction Relief Act Each petition was denied, and the denials of the first three petitions were affirmed by the state Superior Court. The fourth petition was dismissed. In February 2002, Clemmons turned to the federal courts for relief. Acting as his own lawyer, he filed a habeas corpus petition and asked Caldwell to appoint a lawyer to handle the case. In November 2002, Caldwell issued an opinion in which he acknowledged that he had “presided at petitioner’s trial” in state court. He then denied Clemmons’ habeas petition as untimely, but made no mention of Clemmons’ request for appointed counsel. On appeal, the 3rd Circuit appointed attorneys Patricia C. Shea and David R. Fine of Kirkpatrick & Lockhart to address the issue of whether Caldwell was required to recuse himself from hearing the federal habeas petition since it challenged the trial and conviction over which Caldwell himself had presided when he was a state court judge. The 3rd Circuit later ordered the appointed lawyers to address a second question: whether Caldwell had abused his discretion by deciding the merits of Clemmons’ petition without first addressing his request for court-appointed counsel. In the appeal, Shea and Fine argued that Caldwell should have recused himself to avoid the appearance of impropriety even though Clemmons never asked him to do so. Sloviter agreed, saying: “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.” Although the federal statute on recusal, �455, does not address such a situation, Sloviter found guidance in another federal statute, �47, that bars a federal appellate judge from reviewing any case the same judge had presided over while on a district court. Section 47, Sloviter said, stands for the “bedrock principle” that the judiciary is “hierarchical” and that a litigant is entitled to review “by a judge other than the judge who presided over the case at trial.” Although a habeas petition is not technically an “appeal,” Sloviter found that its purpose is to provide criminal defendants with “the opportunity to have a federal court review the state proceedings for constitutional infirmities.” As a result, Sloviter said, “there is no reason why the same rules governing independence, conflict of interest or appearance of partiality should not apply.” Prosecutors argued that the 3rd Circuit should reject Clemmons’ appeal because he was unable to show any bias on Caldwell’s part. Sloviter disagreed, saying “the asserted absence of actual bias is irrelevant; the mere appearance of bias still could diminish the stature of the judiciary.” The prosecutors also argued that 20 years had passed since Caldwell presided over Clemmons’ state court trial, and that Clemmons raised the recusal claim as a matter of strategy only after Caldwell had denied his habeas petition. Sloviter rejected that argument, too, saying “the passage of time cannot overcome a reasonable person’s doubts about a judge’s impartiality in judging his or her own past works.”

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