# Joe Mario Trevino, Jr. v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

> Court of Appeals for the Fifth Circuit · February 19, 1999 · 168 F.3d 173

URL: https://www.frixlaw.com/law-library/cases/9491892

## Case

- **Full name:** Joe Mario TREVINO, Jr., Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 19, 1999
- **Citations:** 168 F.3d 173; 1999 U.S. App. LEXIS 2591; 1999 WL 79738
- **Precedential status:** Published
- **Opinion:** Dissent by DeMOSS
- **Judges:** King, Jolly, Demoss
- **Cited by:** 207 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491892

## How later opinions describe it (automated extraction)

- holding that no COA is required to appeal the denial of a recusal motion in a 28 U.S.C. § 2254 proceeding
- finding that an explicit denial of relief by the Texas Court of Criminal Appeals accompanied by findings of fact and conclusions of law qualified as an “adjudication on the merits”
- explaining that a list of 11 additional, undeveloped arguments were waived
- affirming the undersigned’s denial of a motion to recuse under § 455(a) based on alleged bias or prejudice or lack of impartiality by the undersigned because the defendant’s attorney had been named as a witness to testify against the undersigned in the § 372(c)(5) proceeding
- stating that issues not briefed on appeal are deemed waived

## Opinion text

DeMOSS, Circuit Judge,
dissenting:
I respectfully dissent. I would not reach the merits of Trevino’s petition because Judge McBryde should have recused himself from its original consideration.
The prior decisions of this Court in United States v. Anderson, 160 F.3d 231 (5th Cir.1998), and United States v. Avilez-Reyes, 160 F.3d 258 (5th Cir.1998), control the result in this case. Applying 28 U.S.C. § 455 (a) to the question of whether Judge McBryde should have recused himself from a sentencing hearing in which the defendant was represented by an Assistant Federal Public Defender who had testified against Judge McBryde before the special investigatory committee of the Judicial Council, we concluded that a reasonable person, when apprised of the relevant circumstances that surround this case, “would harbor doubts about Judge McBryde’s impartiality.” Anderson, 160 F.3d at 233 ; see also Avilez-Reyes, 160 F.3d at 259 . The considerations relied upon in Anderson included the fact that many attorneys are reluctant to file complaints against judges or testify against them for fear of retaliation, as well as the fact that the Judicial Council itself saw fit to order Judge McBryde not to participate in cases involving the testifying attorneys for a period of three years. See Anderson, 160 F.3d at 233-34 . Given that the aim' of § 455 is to avoid even the appearance of impropriety, see Health Servs. Acquisition Corp. v. Liljeberg, 486 U.S. 847, 860 , 108 S.Ct. 2194, 2203 , 100 L.Ed.2d 855 (1988), we concluded that Judge McBryde abused his discretion in failing to recuse.
The logic of these precedents should control the present ease. - We must consider the facts and determine whether a reasonable person who is aware of all of the relevant circumstances would doubt Judge McBryde’s impartiality. Such a reasonable person would know that Judge McBryde' faced charges of misconduct which specifically related, in part, to his treatment of lawyers appearing in his court. See In re Complaints of Judicial Misconduct or Disability (McBryde), No. 98-372-001, manuscript op. at 2 (Jud.Conf.U.S. Sept. 21, 1998). Such a reasonable person would know that an investigation of his conduct had been ongoing for over two years, and that this investigation involved taking testimony from lawyers who had practiced before Judge McBryde. See id. Such a reasonable person would know that the proceedings were adversarial in every sense of the word, that Judge McBryde was fully aware of all these complaints, that he was represented by counsel, that he had been apprised of the nature and substance of the complaints, and that he personally attended many of the committee’s hearings in which testimony was presented. Such a reasonable person would know that at the time Trevino filed the recusal motion, Brender was under subpoena to appear before the committee and testify. Such a reasonable person would know that Judge McBryde was given “brief explanations]” of the substance of the witnesses’ testimony in advance of their appearances. Id. Such a reasonable person would know that at the time Judge McBryde denied the motion on September 24, 1997, there were still scheduled sessions at which Brender could have been called to testify. See id. Such a reasonable person would know that Judge McBryde either *186 knew with certainty or would have inferred that Brender would give adverse testimony.
If a reasonable person- would harbor doubts about the impartiality of a judge who knew of adverse testimony actually supplied against him by the lawyers in a case, it stands to reason that the same doubt would exist with respect to an attorney who had been subpoenaed and for whom there was every reason to believe that he would in fact be called to testify and provide additional adverse testimony. This conclusion is bolstered by the fact that despite the committee’s failure to actually call Brender to testify, at the end of the proceedings his name was nevertheless included on the list of lawyers over whom Judge McBryde is not permitted to preside for a period of three years. See In re Matters Involving United States District Judge John H. McBryde, Under the Judicial Conduct and Disability Act of 1980, Nos. 95-05-372-0023 et al. (Jud. Council 5th Cir. Dec. 31, 1997) (order and public reprimand), af fd, No.98-372-001, manuscript op. at 24 (Jud.Conf.U.S. Sept. 21, 1998) (“There is plenty of evidence in the record to support the judicial council’s implicit conclusion that Judge McBryde might attempt to retaliate in some fashion against witnesses who had testified against him, or at least that witnesses reasonably perceived such a risk.”). The majority’s attempt to distinguish Anderson and Avilez-Reyes is, quite frankly, a stretch.
In addition to our controlling precedents, requiring Judge McBryde’s recusal comports with established interpretations of the Code of Conduct for United States Judges published by the Judicial Conference Committee on Codes of Conduct. * Because I believe that our decision is controlled by Anderson and Avilez-Reyes , and because I have no trouble concluding that a reasonable person aware of all the facts would question Judge McBryde’s impartiality in a case involving a lawyer who was named as a witness in the investigation of Judge McBryde’s judicial misconduct, I would vacate the judgment and remand the case for proceedings before a different judge. I therefore dissent.
Canon 3C(1) of the Code requires that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned....” Notably, this requirement embodies the same standard for recusal as does § 455. Applying Canon 3C(1), the Committee has determined that "[a] judge who is personally involved in litigation with the IRS is recused, subject to remittal, from cases in which ... the Assistant United States Attorneys appearing before the judge are also litigating the judge's dispute with the IRS.” Compendium § 3.4-8(c). Additionally, "[a] judge should recuse from cases handled by a law firm, one of whose members or associates represents a party adverse to the judge in other litigation.” Compendium § 3.6-3(a). And although "[ajutomatic recusal is not necessary when a 28 U.S.C. § 372 complaint is filed” against a judge, because it may not be meritorious, “[a] judge should normally recuse if the complaint is not dismissed.” Compendium § 3.6-7. Each of these examples provides additional color around the edges of Judge McBiyde’s situation, and each of them suggests generally that when a judge is involved in some variety of litigation, there ordinarily is sufficient doubt about the judge’s impartiality towards opposing counsel to trigger the obligation to recuse.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491892. Public record. Not legal advice.