Robertson Fowler, III v. Keith Butts

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1221

ROBERTSON FOWLER, III,

Petitioner-Appellant,

v.

KEITH BUTTS, Superintendent, New Castle Correctional Facil-

ity,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:13-cv-1744-JMS-MJD — Jane Magnus-Stinson, Judge.

____________________

ARGUED APRIL 7, 2016 — DECIDED JULY 20, 2016

____________________

Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Robertson Fowler pleaded

guilty in Indiana to unlawful possession of a firearm by a

“serious violent felon” who was also a habitual offender. The

judge sentenced him to 30 years’ imprisonment: 15 for the

possession offense and 15 extra on account of his criminal

history.

2 No. 15-1221

While his case was on appeal, the Supreme Court of Indi-

ana held that a prior conviction used to establish status as a

“serious violent felon” cannot also be used to establish status

as a habitual offender. Mills v. State, 868 N.E.2d 446 (Ind.

2007). Fowler’s appellate lawyer did not bring Mills to the

attention of the intermediate appellate court, which affirmed

his sentence. Fowler v. State, 2007 Ind. App. LEXIS 2015 (Aug.

31, 2007). On collateral review the same court held that it

would not have done any good to rely on Mills, because

Fowler’s plea bargain waived reliance on the approach that

Mills adopted. Fowler v. State, 977 N.E.2d 464 (Ind. App.

2012). Fowler then filed a federal collateral attack under 28

U.S.C. §2254, contending that he had received ineffective as-

sistance of counsel in his initial appeal. The district court de-

nied this petition, relying on the state judiciary’s conclusion

that Fowler had waived the benefit of Mills, and that given

the waiver Fowler did not suffer any prejudice from coun-

sel’s omission. 2015 U.S. Dist. LEXIS 6419 (S.D. Ind. Jan. 21,

2015). Fowler contends in this court that the state’s 2012 ap-

pellate decision was wrong: that he had not waived the ben-

efit of the Mills theory, and that a careful lawyer therefore

would have relied on Mills in the initial appeal.

We do not address the substance of Fowler’s argument,

because a procedural problem takes precedence. District

Judge Magnus-Stinson, who denied Fowler’s federal collat-

eral attack, also was the person who sentenced Fowler dur-

ing her time on the state’s bench. We held in Weddington v.

Zatecky, 721 F.3d 456, 461–63 (7th Cir. 2013), that reasonable

observers would doubt the impartiality of a former state

judge who is asked to assess the validity of her own decision

after coming to the federal bench, and that 28 U.S.C. §455(a)

No. 15-1221 3

therefore requires the case to be heard by a different federal

judge.

Indiana asks us to distinguish Weddington on the ground

that Fowler contests the performance of his appellate coun-

sel rather than the decision by Judge Magnus-Stinson, who

sentenced him before Mills was released. But Fowler’s chal-

lenge remains one to his 30-year sentence, and if he prevails

he will be entitled to a new appeal in the state system in

which Indiana’s appellate judiciary will have to decide

whether the sentence was properly imposed, given the terms

of state law and Fowler’s plea bargain.

Federal judges routinely hear challenges to their own

convictions and sentences under 28 U.S.C. §2255. Section

2255(a) designates the motion as one in the criminal case,

which implies the propriety of assignment to the original

judge. Federal judges routinely are asked to change their

minds (as in motions to alter the judgment under Fed. R. Civ.

P. 59 and 60, or petitions for rehearing on appeal), and no

one supposes that such a request disqualifies the judge un-

der §455(a). But the state–federal sequence is different. Sec-

tion 2254 is designed to ensure that a fresh pair of eyes looks

at the matter, from a different perspective. That goal cannot

be accomplished if the federal judge who entertains the peti-

tion under §2254 also was the state judge who imposed or

affirmed the judgment now being contested.

The only sensible approach is all or none: a federal judge

can hear a collateral attack on a conviction or sentence she

imposed or affirmed as a state judge, or she cannot. Trying

to work through the details of the petitioner’s federal theory

in relation to the judge’s role on the state bench would be a

formula for uncertainty, offering reasons to doubt the ade-

4 No. 15-1221

quacy of the federal system. For the reasons given above and

in Weddington, “all” is better than “none”: a federal judge al-

ways is disqualified from hearing a collateral attack on a

judgment he or she entered or affirmed as a state judge.

Judge Magnus-Stinson should have turned this proceeding

over to a different judge.

Indiana maintains, however, that Fowler forfeited his

opportunity to have the case heard by someone else, because

he did not ask this court to issue a writ of mandamus that

would have prevented Judge Magnus-Stinson from deciding

the case.

Ever since 1985 this circuit has distinguished between

disqualification under §455(a) and disqualification under

§455(b). See United States v. Balistrieri, 779 F.2d 1191, 1204–05

(7th Cir. 1985). We held in Balistrieri that §455(b) creates per-

sonal rights that can be vindicated on appeal but that

§455(a), which concerns the appearance of impropriety, cre-

ates only systemic interests—important to the judicial sys-

tem but not individual litigants—which may be vindicated

only before final decision in the district court. Once the dis-

trict judge has acted, Balistrieri holds, any bad appearance

has come to pass; and when there is no actual bias the liti-

gant has no personal interest in upsetting an untainted

judgment. Many decisions since Balistrieri decline to consid-

er arguments that depend on §455(a). See, e.g., United States

v. Johnson, 680 F.3d 966, 979 (7th Cir. 2012); United States v.

Diekemper, 604 F.3d 345, 351–52 (7th Cir. 2010); United States

v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989).

Some of our recent decisions have shown unease about

Balistrieri’s distinction between §455(a) and §455(b). Wed-

dington found a reason to remand that did not depend on

No. 15-1221 5

§455(a) and added that, once the case returned to the district

court, it must be assigned to a different judge. More recently,

a panel departed from Balistrieri because only a short time

had elapsed between when mandamus could have been

sought and the entry of final judgment. United States v. Her-

rera-Valdez, No. 14-3534 (7th Cir. June 17, 2016), slip op. 5–8.

One member of this court has called for Balistrieri’s overrul-

ing, see United States v. Boyd, 208 F.3d 638, 649–52 (7th Cir.

2000) (Ripple, J., dissenting). Judge Ripple observed that no

other circuit has followed Balistrieri, that several have reject-

ed its approach, and that it appears to be inconsistent with

two decisions by the Supreme Court that have decided

§455(a) issues initially raised by appeal rather than manda-

mus. See Liteky v. United States, 510 U.S. 540 (1994); Liljeberg

v. Health Services Acquisition Corp., 486 U.S. 847 (1988).

We have resurveyed the appellate precedents. The situa-

tion identified by Judge Ripple in 2000 still holds: No court

other than the Seventh Circuit refuses to consider §455(a) ar-

guments on appeal. Some of the other circuits reject this cir-

cuit’s doctrine after citing our decisions; others simply ignore

Balistrieri and its successors. See, e.g., Hardy v. United States,

878 F.2d 94, 98 n.4 (2d Cir. 1989) (“Unlike the Seventh Cir-

cuit, this Circuit will entertain a section 455(a) recusal claim

on direct review”); United States v. Cooley, 1 F.3d 985, 995–96

& n.9 (10th Cir. 1993); In re School Asbestos Litigation, 977 F.2d

764, 777–78 & n.12 (3d Cir. 1992); Diversified Numismatics, Inc.

v. Orlando, 949 F.2d 382, 384 (11th Cir. 1991). At least three

other circuits have considered §455(a) issues on appeal

without discussion. See, e.g., United States v. Payne, 944 F.2d

1458, 1476–77 (9th Cir. 1991); United States v. Wade, 931 F.2d

300, 302–05 (5th Cir. 1991); United States v. Mitchell, 886 F.2d

667, 671 (4th Cir. 1989). We are the odd circuit out. We ob-

6 No. 15-1221

served in United States v. Corner, 598 F.3d 411, 414 (7th Cir.

2010) (en banc), that being alone among the circuits justifies

giving the subject a fresh look. We have done that and con-

clude that Balistrieri and its successors must be overruled to

the extent they hold that arguments under §455(a) cannot be

raised on direct appeal.

Liteky and Liljeberg do not themselves doom Balistrieri.

The question was not raised by the litigants in either case

and was not discussed by the Justices. The Court may have

assumed the propriety of deciding §455(a) questions on ap-

peal, but an assumption is not a holding.

The problem with Balistrieri is its lack of textual support

in §455. Here is the full text of §455(a) and (b):

(a) Any justice, judge, or magistrate judge of the United States

shall disqualify himself in any proceeding in which his impar-

tiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstanc-

es:

(1) Where he has a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary facts

concerning the proceeding;

(2) Where in private practice he served as lawyer in the mat-

ter in controversy, or a lawyer with whom he previously

practiced law served during such association as a lawyer

concerning the matter, or the judge or such lawyer has been

a material witness concerning it;

(3) Where 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;

(4) He knows that he, individually or as a fiduciary, or his

spouse or minor child residing in his household, has a finan-

No. 15-1221 7

cial interest in the subject matter in controversy or in a party

to the proceeding, or any other interest that could be sub-

stantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of

relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or

trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could

be substantially affected by the outcome of the proceed-

ing;

(iv) Is to the judge’s knowledge likely to be a material

witness in the proceeding.

These provisions are parallel. Both (a) and (b) lay on the

judge a duty to step aside if some circumstance holds. Noth-

ing in the language or structure of this statute says or im-

plies that the duty under subsection (a) must be enforced ex-

clusively by mandamus, while the duty under subsection (b)

may be enforced on appeal.

Our opinion in Balistrieri did not rely on the text or con-

text of §455. It derived the mandamus rule from a belief that

problems with the appearance of partiality should be re-

solved as early in the case as possible, coupled with a belief

that the “appearances” problem concerns the judiciary as a

whole rather than the rights of any litigant. See 779 F.2d at

1204–05. These are worthy considerations, but they are not

part of the statute. The Supreme Court has told us that judg-

es must enforce statutes as Congress wrote them and the

President approved them, without adding or subtracting fea-

tures that the judges deem to be wise policy. See, e.g., Michi-

gan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2033–34

(2014).

8 No. 15-1221

And if wise policy counts, it is hard to see why it is invar-

iably wise to limit issues under §455(a) to review by manda-

mus. A request for interlocutory review may come too early

in a case, before the features that call a judge’s impartiality

into question have become apparent. A court of appeals is-

sues a writ of mandamus only when the applicant has an in-

dubitable right to that prerogative writ or there is no other

way to correct a manifest injustice. See, e.g., Mohawk Indus-

tries, Inc. v. Carpenter, 558 U.S. 100, 111 (2009); Cheney v. Unit-

ed States District Court, 542 U.S. 367, 380–81 (2004). Factual or

legal uncertainty means no mandamus. That may make it

unduly difficult to enforce §455(a), compared with consider-

ation in an appeal where the question is whether the district

judge was right to serve, rather than whether disqualification

was certainly required.

More than that: the assumption in Balistrieri that liti-

gants lack personal rights in the appearance of impartiality

is doubtful. True enough, the judicial system and the public

as a whole want to be confident that impartial judges are as-

signed to cases. But we regularly rely on litigants to enforce

procedural rules, and §455(a) is one of those rules no less

than §455(b). Judges sometimes say that §455(a) is about the

appearance of impropriety, while §455(b) is about actual bi-

as. No one doubts that litigants are entitled to have their cas-

es heard by unbiased judges, but it is too simple to say that

every part of §455(b) concerns actual bias. Section 455(b)(4)

disqualifies a judge who has a financial interest in the case—

and also a judge who acts as a fiduciary for someone else

who does (even when the judge has no interest at all), as

well as a judge whose spouse or minor child has a financial

interest. Section 455(d)(4) defines “financial interest” to in-

clude even a single share of stock, so that a judge is disquali-

No. 15-1221 9

fied if he is a fiduciary for an entity (say a private college on

whose board he serves as an alumni representative) that

owns one share of stock in a huge corporation, whose value

cannot be materially affected by the litigation. It may be wise

to remove all question by following the rule that the small-

est, indirect interest is disqualifying, but that’s not what “ac-

tual bias” means. Enforcement of §455(b) thus often is about

the maintenance of appearances—and if its rules can be vin-

dicated on appeal, why can’t the rule of §455(a) be vindicat-

ed on appeal? We hold today that it can be.

Next we must consider the possibility that Fowler forfeit-

ed his right to raise §455(a) on appeal by not filing a motion

in the district court seeking the judge’s disqualification. Sev-

eral of this circuit’s decisions hold that failure to file a motion

in the district court waives the right to present the conten-

tion on appeal. See, e.g., United States v. Ruzzano, 247 F.3d

688, 694 (7th Cir. 2001); Johnson, 680 F.3d at 979–80. We as-

sume that these decisions mean forfeiture rather than waiv-

er; it takes an intentional step to waive a right. See United

States v. Olano, 507 U.S. 725, 733–34 (1993). But under these

decisions the upshot of either forfeiture or waiver is the

same: §455 will not be enforced on appeal.

Other circuits are all over the lot. Some treat silence as ei-

ther waiver or forfeiture; those that classify the omission as

forfeiture allow review for plain error. See, e.g., Knight v.

Mooring Capital Fund, LLC, 749 F.3d 1180, 1191 (10th Cir.

2014); In re Lupron Marketing and Sales Practices Litigation, 677

F.3d 21, 37 (1st Cir. 2012); Clemmons v. Wolfe, 377 F.3d 322 (3d

Cir. 2004); United States v. Berger, 375 F.3d 1223, 1227–28 (11th

Cir. 2004); Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203, 216

(5th Cir. 1998); United States v. Barrett, 111 F.3d 947, 951–53

10 No. 15-1221

(D.C. Cir. 1997); United States v. Owens, 902 F.2d 1154, 1155–

57 (4th Cir. 1990). Two circuits require a motion in the dis-

trict court only if the record shows that the litigant knew

enough to see that a motion was necessary (or prudent). See,

e.g., United States v. Brinkworth, 68 F.3d 633, 639 (2d Cir.

1995); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d

1407, 1414 (8th Cir. 1983). Some circuits have decisions in

multiple lines, sometimes using waiver doctrine, sometimes

forfeiture doctrine, and sometimes excusing the absence of a

motion.

The premise of decisions such as Ruzzano and Johnson is

that litigants must take the initiative. That is a norm in litiga-

tion—but §455 is an exception to the norm, and its language

affects what role the litigants must play. Both subsection (a)

and subsection (b) say that the judge “shall disqualify him-

self when” certain things are true. The judge, not the litigant,

must take the initiative.

The judge, not the litigant, knows what investments are

held by members of the household (§455(b)(4)) and who

employs the judge’s relatives within the third degree

(§455(b)(5)). Litigants may be at a disadvantage on the law as

well as the facts. Fowler was sentenced by Judge Magnus-

Stinson in the state case and likely recognized that the Judge

Magnus-Stinson assigned to the federal case is the same per-

son (though we cannot be sure that he knew this; different

people with the same name may serve in state and federal

judiciaries). But Fowler, who lacked the benefit of counsel in

the district court, may not have known about Weddington

and therefore may not have understood that he has a right to

a decision by a different federal judge. That may be why this

issue did not surface until we appointed counsel to represent

No. 15-1221 11

Fowler on appeal. We expect pro se litigants to brush up on

the law behind their claims; we do not require them to come

across all other rules of the judicial system. Because the

judge knows both the facts and the law about disqualifica-

tion better than any litigant, even a litigant with a lawyer, it

is well to stick with the statutory language: the judge must

disqualify herself when the statute so provides whether or

not the litigant files a motion.

Section 455(e) clears up any doubt on that score. It says

that a judge may accept a waiver of disqualification under

subsection (a), but only if “it is preceded by a full disclosure

on the record of the basis for disqualification.” The statute

does not permit an otherwise-disqualified judge to serve just

because the litigant fails to make the appropriate motion. In-

stead the judge must take the initiative and make a “full dis-

closure on the record”—and even then only a waiver by the

litigant allows the judge to continue in an adjudicatory ca-

pacity. If a litigant’s silence after a judge’s disclosure does not

remit the disqualification imposed by §455(a), a litigant’s si-

lence without full disclosure cannot do so. (The fact that re-

mittal of disqualification under §455(a) is possible, but only

with a litigant’s waiver, also reinforces the conclusion stated

earlier that §455(a) creates personal rights, which implies

that they can be vindicated on appeal.)

The Supreme Court has allowed litigants to seek disqual-

ification despite the absence of a protest in the court where

the disqualified judge sat. See Nguyen v. United States, 539

U.S. 69 (2003). Both Nguyen and the recent Williams v. Penn-

sylvania, 136 S. Ct. 1899 (2016), treat the participation of a

disqualified judge as a form of structural error, which may

be noticed at any time. In both Nguyen and Williams the dis-

12 No. 15-1221

qualified judge participated in an appellate court that decid-

ed the case unanimously. The Supreme Court reversed both

judgments even though both cases likely would have come

out the same way with a different complement of judges.

It follows from this discussion that Ruzzano, Johnson, and

any similar decisions in this circuit must be, and are now,

overruled to the extent they forbid appellate review of judi-

cial-disqualification issues in the absence of a motion in the

district court.

Because this opinion overrules two lines of decisions in

this circuit, it was circulated before release to all judges in

active service. See Circuit Rule 40(e). None of the judges fa-

vored a hearing en banc.

The judgment is vacated, and the case is remanded for

decision by a different district judge.