Opposition Brief — Whisenhant v. Allen (No. 09-220)

| — % : Supreme Court, U.S.

. & F FILED

No. 09-220 | OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

e

THOMAS WARREN WHISENHANT,

Petitioner,

y.

RICHARD ALLEN, Commissioner of the

Alabama Depariment of Corrections,

Respondent.

p

on rs

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF IN OPPOSITION

Troy King

Attorney General

J. Clayton Crenshaw*

*Counsel of Record

STATE OF ALABAMA

Office of Attorney General

500 Dexter Avenue

Tel: (334) 242-7300

October 21, 2009 Fax: (334) 353-3637

Assistant Attorney General

Montgomery, AL 36130-0152

CAPITAL CASE

QUESTION PRESENTED

(Rephrased)

Should this Court grant certiorari to review

whether the Court of Appeals correctly determined

that the Alabama courts’ denial of Whisenhant’s

claim of judicial bias did not violate 28 U.S.C. §

2254(d) where Whisenhant’s sole claim is that he

was entitled to relief based on the probability of

actual bias?

TABLE OF CONTENTS

QUESTION Fie iiss sscssc5cc. cc. cccc cece cee i

TABLE OF Fite pai cascccccs cscs seccsccccccsscoe ees ill

OPTI EOI Bey ionic vcseccscccesccccscces sees 1

JU Rr ianckn seco ccc ccesesccsccsecsess 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 1

STATE MEINE Gir Wee te aiiiss cnc csccccccccscssocsscceseees 2

A. Facts Concernimg The Crime.............................- 2

B. State Corre Peete wascessnsccccsccccsccccccecccsccceess 4

C. Facts Relating to Whisenhant’s Claim That

The Trial Judge Was Biased...................ceceeeeeee es 5

REASONS WHY THE PETITION SHOULD BE

JOR hee Ee 9

I. THE STATE COURTS’ DENIAL OF

WHISENHANTS CLAIM THAT THE

STATE TRIAL JUDGE WAS BIASED AND

IMPARTIAL WAS NOT CONTRARY TO, OR

AN UNREASONABLE APPLICATION OF,

CLEARLY ESTABLISHED FEDERAL LAW..... 10

A. The Legal Principles Announced In ‘Tumey

and Murchison Are Inapplicable To This

OF er 12

B. The Legal Principles Recently Announced

By This Court in Caperton Are Also

Inapplicable to Whisenhant’s Case. ................. 1&

CON CLUB rca seescrccsecncscccesccseees 21

ve

11]

TABLE OF AUTHORITIES

CASES

Aetna Life Ins. Co v. Lavoie, 475 U.S. 813

RR er ne a LaNR ee er A Ne ATMO NAL TE DIA 17

Bracy v. Gramley, 520 U.S. 899, 117 S.Ct.

I ogc ah eee eat rae 13

Caperton v. A.T. Massey Coal Co., Inc., 129

A ee CE ick cecidcctscssevackcunitardemedvaee passim

Ex parte Whisenhant, 482 So. 2d 1241 (Ala.

IE cove nc coca ea bstcusassa enact ie ae 4

Ex parte Whisenhant, 482 So. 2d 1247 (Ala

NOI os osc eee i ee 4

Ex parte Whisenhant, 555 So. 2d 235 (Ala.

DE saris sari ls i see ee cee tk 5

In re Murchison, 349 U.S. 133 (19585)............... passim

Mavberry v. Pennsylvania, 400 U.S. 455

PE Ee vrcescacolccrcsenk nas ee aes ee 17

Offutt v. United States, 348 U.S. 11 (1954) ............. 17

Tumev v. Ohio, 173 U.S. 510 (1927)................. passim

Ward v. Village of Monroeville, 409 U.S. 57

Ce IE hcnsscdckcscdsae eins sae 17

Whisenhant v. Alabama, 496 U.S. 943 (1990) ........... 5

Whisenhant v. Allen, 556 F.3d 1198 (11th. Cir.

ENED cakscccovcisdaccnevccsidiesee aac eee bys 2a LO

Whisenhant v. State, 370 So. 2d 1080 (Ala.

Crete, Fe; YTD wees svcsaccicicdneccteee een eee 4

Whisenhant v. State, 482 So. 2d 1225 (Ala.

NF cca usu sanvanseaniookvsiacinxkasooues 4

Whisenhant v. State, 482 So. 2d 1246 (Ala.

PE I css cc edepcnnvucuseressarsiserisniwacintincwonees 4

Whisenhant v. State, 555 So. 2d 219 (Ala.

on SRR IRE se tpn on ea ht ee ee aD Ee 5

Williams v. Taylor, 529 U.S. 362 (2000)................... 13

Withrow v. Larkin, 421 U.S. 35 (19785)...............s.se0 12

STATUTES

United States Code

cs Gissss i aasnianavvaieessvonees 2, 10, 20

BH TC © SIN oasis kcssct ns esessssncecsesnessensscisoscecaee i, 20

Mec ED aki cicedccecensaseesapsacacicnsccdcarenns Bs

OTHER AUTHORITIES

Anti-Terrorism and Effective Death Penalty

PG PN os cah.cia cage staceneetiarse i cheeniacdsarieses 2, 20

]

OPINIONS BELOW

The United States District Court for the Southern

District of Alabama issued an order denying all

habeas relief. (Pet. App. 28-165) The United States

Court of Appeals for the Eleventh Circuit affirmed.

Whisenhant v. Allen, 556 F.3d 1198 (11th. Cir. 2009);

(Pet. App. 1-27) Whisenhant’s petition for rehearing

and his petition for rehearing en banc were denied.

(Pet. App. 166-167)

°

JURISDICTION

The Respondent does not dispute Whisenhant’s

statement of jurisdiction. (Pet. 1-2)

+

CONSTITUTIONAL PROVISIONS

INVOLVED

Whisenhant accurately identifies and sets forth

the text of the Fourteenth Amendment to the United

States Constitution, but that amendment was not

violated in this case.

2

STATEMENT OF THE CASE

Petitioner Thomas Whisenhant attempts to

stretch the Court’s freshly-minted “probability of

actual bias” recusal standard to the limits. Caperton

v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2263

(2009). Whisenhant argues that the Alabama state

courts wrongly failed to find a probability that his

trial judge was biased based solely on the judge

issuing an order granting Whisenhant’s motion for

expert funding—an order that was drafted by the

prosecution. This claim is unworthy of certiorari

review for two reasons. First, Caperton certainly

does not stretch that far. Second, and perhaps more

clearly, Whisenhant’s claim arises from the denial of

federal habeas relief under the Anti-Terrorism and

Effective Death Penalty Act (“‘AEDPA”). See 28

U.S.C. § 2254. Even if Capterton reached the facts of

this case (and it does not), Caperton was not “clearly

established” law at the time the state court decision.

See 28 U.S.C. § 2254(d) (1). Thus, habeas relief is

clearly foreclosed.

A. Facts Concerning The Crime

On the night of October 16, 1976, Cheryl Lynn

Payton was working alone at a convenience store in

Theodore, Alabama. Vol. 24, R. 182-191. Sometime

before 10:00 p.m. that night, Whisenhant entered the

convenience store with a gun and forced Mrs. Payton

to walk out of the store and get into his pickup truck.

Vol. 25, R. 77-80. Whisenhant drove Mrs. Payton to

a remote area where he raped her in the front seat of

the truck, then led her into the woods at gunpoint

and shot her once in the head, killing her. Vol. 25, R.

45, 61, 81-82.

3

The following day, Whisenhant returned to the

location of Payton’s body, but left when he was

accosted by some boys. Vol. 24, R. 201-06, Vol. 25, R.

77-80. The next day, Whisenhant returned to the

location of the body and moved it approximately 60

feet so that it would more likely be found. Vol. 25, R.

77-80. On one or both of these occasions,

Whisenhant mutilated Payton’s body, using a knife

to cut the left breast and abdomen, as well as the

vaginal area. Vol. 25, R. 32, 46-47, 55, 64-65, 80, 85.

On the second occasion when Whisenhant

returned to Payton’s body, he was seen by a local

farmer who also alerted the police that he had

discovered a body. Vol. 24, R. 222, 225-27, Vol. 25, R.

244. Still in the area when the police arrived on the

scene, Whisenhant tried to escape in his pickup

truck, but was apprehended after a_ high-speed

chase. Vol. 25, R. 245-256. Whisenhant eventually

abandoned his truck and retreated into the woods.

Vol. 25, R. 251. While hiding there, his wife was

brought to the scene to communicate with him by a

police loudspeaker. Vol. 25, R. 254. Upon hearing

her voice, Whisenhant yelled, “I’ve done everything

they said I did,” and indicated that rather than

surrender the police would have to kill him. Vol. 25,

R. 254-55.

After being taken into custody, Whisenhant

confessed to the rape, murder, and mutilation of

Payton. Vol. 25, R. 24-91. He admitted that if

someone had walked into the store during the course

of the crime he would have left. Vol. 25, R. 90. He

also confessed to murdering two other female

convenience store clerks - one of whom he admitted

to mutilating in the same fashion as he did Payton —

in the preceding 12 months. Vol. 25, R. 24-91.

4

B. State Court Proceedings

Whisenhant was originally convicted and

sentenced to death in 1977 for the rape/murder of

Cheryl Payton. Vol. 9 at 1745-49. However, his

conviction was reversed because the _ prosecutor

engaged in improper closing argument by suggesting

that Whisenhant would be released from custody if

he were found not guilty by reason of insanity and

because of a fatal variance between the indictment

and the judgment. Whisenhant v. State, 370 So. 2d

1080, 1097-1102 (Ala. Crim. App. 1979).

In 1981, Whisenhant was tried and again

convicted and sentenced to death. Vol. 12 at 103-07.

This second conviction was affirmed by the Alabama

Court of Criminal Appeals, but the sentence was

reversed due to an improper remark during the

prosecutors penalty phase opening’ statement.

Whisenhant v. State, 482 So. 2d 1225, 1239-40 (Ala.

Crim. App. 1982). After cross petitions for certiorari

were granted, the Alabama Supreme Court

remanded the case for a determination of whether

the penalty phase error was harmless. Ex_parte

Whisenhant, 482 So. 2d 1241 (Ala. 1983). On

remand, the Court of Criminal Appeals held that the

error was harmless and affirmed the death sentence.

Whisenhant v. State, 482 So. 2d 1246 (Ala. Crim.

App. 1983) The Alabama Supreme Court, however,

determined that the error was not harmless and

remanded for a new penalty phase trial. Ex parte

Whisenhant, 482 So. 2d 1247 (Ala. 1984).

After remand, in 1987, Whisenhant received

another penalty phase trial, and after a jury

recommendation of death the trial judge sentenced

Whisenhant to death. Vol. 19 at 168-76. ‘The Court

5)

of Criminal Appeals and the Alabama Supreme

Court affirmed the death sentence. Whisenhant v.

State, 555 So. 2d 219 (Ala. Crim. App. 1988), aff d,

Ex parte Whisenhant, 555 So. 2d 235 (Ala. 1989).

The United States Supreme Court denied certiorari.

Whisenhant v. Alabama, 496 U.S. 943 (1990).

Whisenhant then commenced post-conviction

proceedings in state court by filing a Rule 32

petition. Vol. 35 at 31-52. In one of his claims,

Whisenhant alleged that “the trial judge’s bias and

appearance of partiality at the time of the 1987

penalty phase hearing violated his rights under the

Eighth and Fourteenth Amendments to the United

States Constitution...” After an evidentiary hearing,

the Rule 32 trial court denied the petition. Vol. 37,

R. 403-89. The Alabama Court of Criminal Appeals

entered an unpublished memorandum opinion

affirming the denial of the Rule 32 petition. Vol. 42,

R-44. Specifically rejecting Whisenhant’s claim of

judicial bias on the merits, that court held that

Whisenhant failed to offer any evidence of personal

bias or partiality on the part of the trial judge. The

Alabama Supreme Court denied certiorari. Vol. 43,

R-49.

C. Facts Relating to Whisenhant’s Claim

That The Trial Judge Was Biased.

The facts underlying this claim relate to a motion

filed before the 1987 penalty phase requesting funds

to hire a psychiatrist. Vol. 19, 33-38. Prior to tral,

defense counsel filed numerous motions with Judge

Ferrill McRae! including a motion for access to a

psychiatrist. Vol. 19, at 33-38. The motion is

|! Judge McRae presided over all three of Whisenhant’s trials.

6

virtually identical to the motion for funds defense

counsel filed before the 1981 trial. The motion

mentioned the two psychiatrists that had performed

an evaluation before the 1977 trial, Dr. Claude

Brown and Dr. Emanuel 'Tanay. Id. The motion

requested $2,200 for Dr. Brown and $2,000 for Dr.

Tanay. Id. Specifically, the motion requested funds

to hire Dr. Brown and Dr. Tanay for the following

reasons: (1) to present evidence to establish that

Whisenhant was insane when he committed the

crime, (2) to establish the relevant statutory

mitigating circumstances, and (3) to assist defense

counsel in cross-examining the State’s' more

numerous mental health experts. Id.

Judge McRae, although granting Whisenhant’s

motion in part, stated that Whisenhant was not

“entitled” to have the motion granted. Vol. 19 at 39-

40. In that regard, the order stated:

Defendant presented abundant

psychiatric evidence at the first trial

and the same evidence was available to

him at the second trial and is still

available to him. Had he desired to do

so, Defendant could have read the

psychiatric testimony from the first trial

into the record before the jury at the

second trial, and he could also do so

now. The Defendant also could have

subpoenaed at least one of his expert

psychiatric witnesses to present live

testimony at his second trial, and he can

do so now. Dr. Claude Brown was a

member of the Lunacy Commission, he

testified on behalf of the Defendant at

the first trial, and he was within the

7

jurisdiction of the Court at the time of

the second trial, and he still is. Dr.

Brown has previously testified that he

would obey a subpoena to testify again

in this case.

Id. The order also noted that the Southern Poverty

Law Center, Whisenhant’s counsel, could easily

provide the funds to provide psychiatric assistance at

trial and that the failure to do so must be a

“litigation tactic.” Id. Nevertheless, the order

granted up to $2,200, plus “reasonable expenses” “to

hire an independent psychiatric expert to assist the

Defendant in any way he and his counsel see fit.” Id.

at 40. The order noted however that if Dr. Brown

was not retained, “the Court will enforce a subpoena

to Dr. Brown and will see that he attends trial and

testifies, since he was a member of the Lunacy

Commission and is within the jurisdiction of the

Court, if Defendant and his counsel! desire that he do

so.” Id.

As a part of the Rule 32 proceedings, Whisenhant

presented documents tending to show that District

Attorney Chris Galanos, one of the prosecutors at the

1987 penalty phase trial, gave Judge McRae a draft

order concerning the motion for funds to hire a

psychiatrist. Vol. 36, at 314. Attached to the order

was a handwritten note from Galanos that stated,

among other things, that the order granting funds to

hire a psychiatrist “enumerates facts intended to

preclude Ake error during the guilt [sic] stage.” Vol.

36, at 314. The handwritten note further stated

“(l]jet me know what you want to do.” Vol. 36, at 314.

The handwritten note is dated “2/4,” presumably the

day before the order granting funds to hire a

psychiatrist was entered on February 5, 1987. Vol.

8

19, at 39-41. Galanos testified at the Rule 32

evidentiary hearing that he did not serve the draft

order on counsel for Whisenhant.? Vol. 37 at 58.

The draft order (that contains Galanos’s handwritten

revisions) and the order entered by Judge McRae are

substantially the same. Judge McRae’s order

changed the format of the draft order, corrected a

mistake caused by one of the revisions, and changed

the amount of “$2,000” that was stated in the draft

order to “$2,200.”

“ For reasons unknown, Whisenhant’s brief elevates the role of

then-Assistant Attorney General (now Eleventh Circuit judge)

Ed Carnes in the purported “clandestine scheme.” The

undisputed evidence demonstrates that District Attorney

Galanos hand delivered the draft order to Judge McRae. Vol.

37 at 57-58. In addition, Whisenhant’s brief (on more than one

occasion) labels Judge Carnes as “lead counsel” at the 1987

penalty phase trial. However, the record of that trial reflects

that Judge Carnes did not handle any witnesses nor did he

make an opening statement or closing argument.

9

REASONS WHY THE PETITION

SHOULD BE DENIED

The gist of Whisenhant’s petition to this Court

consists of this: he asks this Court to apply a

standard that does not apply to his case.

Whisenhant’s sole claim of error is that the Court of

Appeals should have considered whether’ the

“probability of actual bias” on the part of Judge

McRae violated due _ process.? However, as

Whisenhant fails to acknowledge, this Court has only

applied this objective standard in three hmited

instances: 1) when a_ mayor-judge benefited

financially from a defendant's conviction; 2) when a

judge was the object of a defendant's contempt; and,

3 In his petition to this Court, Whisenhant does not allege that

Judge McRae was actually biased against him, although this

claim was raised in the courts below. Therefore, the issue of

whether Judge McRae was actually biased is not properly

before this Court. Regardless, this claim was rejected by the

state court and by the District Court below on habeas review.

The Alabama Court of Criminal Appeals, in denying

Whisenhant’s claim of actual bias, held that Whisenhant “failed

to offer any evidence of personal bias or partiality on the part of

Judge McRae” and that “the order entered by Judge McRae

granted [Whisenhant] all of the funds he had sought.” The

Federal District Court below held that it “cannot conclude that

Judge McRae was actually biased or prejudiced against

Whisenhant.” (App. 124-25) That court went on to conclude

that the fact that Judge McRae “apparently signed the State’s

proposed order granting a defense motion without input from

the defense on the form of that order simply does not evince the

kind of bias or prejudice that rises to the level of a

constitutional violation” and therefore, held that “the Alabama

courts’ denial of Whisenhant’s judicial bias claim was neither

contrary to, nor involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court.”

(App.125-26)

10

as determined recently by this Court 3) when a

person with an interest in a case provided extreme

campaign contributions to the particular judge

hearing that case.

The facts of Whisenhant’s case do not fall within

those categories. Accordingly, the Court of Appeals

correctly determined that Whisenhant’s case was not

analogous to the situations noted above and that,

therefore, Whisenhant was not entitled to relief

under 28 U.S.C. § 2254.

Il THE STATE COURTS’ DENIAL OF

WHISENHANT’S CLAIM THAT THE STATE

TRIAL JUDGE WAS BIASED AND

IMPARTIAL WAS NOT CONTRARY TO, OR

AN UNREASONABLE APPLICATION OF,

CLEARLY ESTABLISHED FEDERAL LAW.

This case is not worthy of certiorari review

because the Eleventh Circuit Court of Appeals

correctly determined that the Alabama courts’ denial

of Whisenhant’s judicial bias claim was neither

contrary to, nor involved an_ unreasonable

application of, clearly established federal law as

determined by this Court. The Court of Appeals

rejected Whisenhant’s claim that Judge McRae’s

order during the 1987 penalty phase retrial created

an “appearance of partiality” which violated his due

process rights because that court found that there

was no decision from this Court clearly establishing

that the “appearance of bias or partiality” alone,

absent actual bias, violated the Due Process Clause.

Whisenhant v. Allen, 5456 F.3d 1198, 1209 (11th. Cir.

2009). The Court of Appeals further rejected

Whisenhant’s claim that the “probability of actual

bias” on the part of Judge McRae denied him due

11

process, noting that this Court had only identified

certain situations in which the probability of actual

bias became “constitutionally intolerable”, namely,

cases “in which the judge has a pecuniary interest in

the outcome or has been personally abused or

criticized by the party before him.” Id. That court

held that these judicial bias cases were not

analogous to the facts of Whisenhant’s case and that,

therefore, the Alabama _ courts’ denial of

Whisenhant’s claim was not contrary to, or an

unreasonable application of, clearly established

federal law. Id. at 1210.

In an effort to gain certiorari review in this Court,

Whisenhant mischaracterizes the Court of Appeals’

hoiding and further, ignores critical distinctions in

this Court’s precedent. Whisenhant claims that the

Court of Appeals failed to apply the correct “objective

standard” to determine when recusal is required and

instead required Whisenhant to “establish actual

judicial bias by showing that ‘the judge has a

pecuniary interest in the outcome of the case or has

been personally abused or criticized by the party

before him.” Whisenhant’s petition at p. 10.

Whisenhant, citing Tumey v. Ohio, 173 U.S. 510

(1927), In re Murchison, 349 U.S. 133 (1955), and

this Court’s recent decision in Caperton v. A.T.

Massey Coal Co., 129 S.Ct. 2252 (2009), argues that

the Court of Appeals should have considered whether

the facts involving Judge McRae led to a potential or

probability for actual bias. Whisenhant’s petition at

pp. 11-12.

Whisenhant’s assertion is flawed. No error

occurred in this case. The Court of Appeals properly

determined that the “probability of actual bias”

standard did not apply to Whisenhant. That court

12

correctly concluded that, based on the facts of his

case, Whisenhant’s claim of judicial bias did not fall

within the limited category of cases in which this

Court has held that the probability of actual bias

resulted in a violation of due process.

Whisenhant’s problem is that his case simply

does not fall into those limited categories. Notably,

in his petition to this Court, Whisenhant ignores the

specific circumstances in which this Court has held

that the “probability of actual bias on the part of the

judge or decisionmaker is too high to be

constitutionally tolerable.” Withrow v. Larkin, 421

U.S. 35, 47 (1975). Further, Whisenhant makes no

real attempt in his petition to articulate how the

facts of his case align with the particular categories

in which this Court has required recusal on due

process grounds based on the “probability of actual

bias.” More importantly, there is no Supreme Court

precedent on point to the situation presented by this

case. Accordingly, the Court of Appeals correctly

determined “that the Alabama courts’ denial of

Whisenhant’s judicial bias claim was neither

contrary to, nor involved an_ unreasonable

application of, clearly established federal law as

determined by the Supreme Court.” Whisenhant, 556

F.3d at 1210.

A. The Legal Principles Announced In

Tumey and Murchison Are Inapplicable

To This Case.

Whisenhant contends that the state court applied

a rule that contradicted the rule espoused in Tumey

v. Ohio, 273 U.S. 510 (1927) and In re Murchison,

349 U.S. 133 (1955) and that the Court of Appeals

likewise failed to apply this rule in reviewing the

13

state court decision. However, a federal court’s

review of a state court adjudication is limited to

whether the state court decision was contrary to or

an unreasonable application of the _ clearly

established precedent of this Court. Walliams v.

Taylor, 529 U.S. 362, 412-413 (2000). Although not

explicitly stated in his petition, Whisenhant

apparently contends that it is “clearly established”

that under the facts of his case — where a hand-

delivered draft order, granting Whisenhant’s motion

for funds was not served on the defense — Judge

McRae’s recusal was required under the Due Process

Clause based on “a probability of actual bias.”

Contrary to the view espoused by Whisenhant, this

rule is far from clearly established; in fact, this Court

has not established such a rule at all.

“A fair trial in a fair tribunal is a_ basic

requirement of due process.” Murchison, 349 U.S. at

136. The general guiding principle is that the “Due

Process Clause clearly requires a fair trial in a fair

tribunal before a judge with no actual bias against

the defendant or interest in the outcome of his

particular case.” Bracy v. Gramley, 520 U.S. 899,

117 S.Ct. 1793 (1997). However, this Court has

cautioned that “[ajil questions of judicial

qualification may not involve constitutional validity.”

Tumey, 273 U.S. at 523. In fact, “most questions

concerning a judge's qualifications to hear a case are

not constitutional ones, because the Due Process

Clause of the Fourteenth Amendment establishes a

constitutional floor, not a umiform standard.” Bracy,

520 U.S. at 904.

This Court has traditionally required judicial

recusal based on a probability of actual bias in only

two specific instances, neither of which apply to

14

Whisenhant’s case: 1) when a judge _ benefits

financially from the outcome of a case and 2) when a

judge was the object of a defendant's contempt. See

Caperton, 129 S.Ct. at 2262. Tumey represents the

first instance, in which a judge has a financial

interest in the outcome of a case that leads to a

constitutionally impermissible probability of actual

bias. In Tumey, the defendant was arrested on

charges of unlawfully possessing intoxicating liquors

and was brought before the mayor of the village of

North College Hill. 273 U.S. at 514. Under Ohio

law, the mayor had authority to try cases involving

the possession of alcoholic beverages. Additionally,

state law provided that the mayor would receive fees

for serving as a judge and for trying such cases;

however, the mayor would only be paid fees if he

convicted the defendants who appeared before him.

Id. at 520. This Court then held that a defendant’s

due process rights were violated and_ that

disqualification is required where, as in the facts

presented in Tumey, a mayor/judge had a direct,

personal, substantial necuniary interest in reaching

a conclusion against the defendant in that case. Id.

at 523, 535.

Murchison exemplifies the second instance where

a judge acted as a “one-man grand jury” and,

through his prior relationship with the defendant,

therefore, was the object of the defendant’s contempt.

In In re Murchison, 349 U.S. 133 (1955), this Court

was called upon to address the constitutionality of a

Michigan law that allowed the same judge who

served as a “one-man grand jury” before which

certain witnesses had testified to also preside over

the contempt hearing where the same

witness/defendants were found guilty of perjury. In

15

addition to his role of being a one-man grand jury

and petit jury, the trial judge made a comment that

he would personally investigate whether an apparent

alibi offered by the defendant was untruthful. Id. at

137. The Murchison Court found that “(flair trials

are too important a part of our free society to let

prosecuting judges be trial judges of the charges they

prefer.” Id. Accordingly, this Court ruled that “it

was a violation of due process for the ‘judge-grand

jury’ to try these petitioners, and it was therefore

error for the Supreme Court of Michigan to uphold

the convictions.” Id. at 140.

Tumey and Murchison are off point as “clearly

established precedent” in Whisenhant’s case. They

stand merely for the principles that a trial judge

should be disqualified (1) when the judge has a

pecuniary interest in the outcome of the case or (2)

where state procedure allows for the trial judge to

serve also as the grand jury and prosecutor, resulting

in the judge becoming an object of the defendant’s

contempt. Put simply, the principles announced in

Tumey and Murchison are not applicable — let alone

“clearly” applicable — to this case. In the present

case, after Whisenhant filed a motion before the 1987

penalty phase trial that requested funds to hire two

hand-picked psychiatrists, Mobile County District

Chris Galanos hand delivered a draft order to Judge

McRae without serving a copy on defense counsel.

However, Judge McRae’s eventual order, although

similar to the draft order which Galanos hand

delivered to Judge McRae, granted Whisenhant’s

request for funds to hire mental health experts. The

legal principles stated in Tumey and Murchison have

no application because Judge McRae did not have

anything like a pecuniary interest in the outcome of

16

the case and Judge McRae did not serve as a one-

man grand jury or investigate the crime resulting in

the defendant’s contempt.

The Court of Appeals correctly identified these

two limited instances in which this Court has held

that recusal was required under the Due Process

Clause based on a probability of actual bias on the

part of a judge and correctly determined that

Whisenhant’s case did not fall within those

categories. Specifically, that court held that “[i]t is

clear that the judicial bias cases cited by Whisenhant

involve totally different facts from his own case.”

Whisenhant, 556 F.3d at 1210. That court found

that Whisenhant’s case was neither analogous to

Murchison, nor comparable to other decisions relied

on by Whisenhant which involved criminal contempt

proceedings in which the judge was “the one reviled

by a contemnor.” Id. at 1209-10. However, as the

Court of Appeals determined, Whisenhant’s case was

“totally different”: there was no evidence that Judge

McRae was involved in a “running controversy” with

Whisenhant, no personal attacks were made by any

party, Judge McRae never displayed a _ hostile

attitude towards Whisenhant, and most importantly,

Judge McRae’s order granting Whisenhant’s motion

for funds benefitted the defense. Id.

The standard which Whisenhant espouses for

reviewing his claim of judicial bias simply does not

apply to his case. Whisenhant ignores the clear cut

factual scenarios in which this Court has reviewed

whether the “probability of actual bias” warrants

recusal because plainiy, his case does not fall into

such limited instances. Attempting to support his

contention that the Court of Appeals wrongly held

that “the potential for actual bias” standard has only

17

been applied in limited instances by this Court,

Whisenhant cites a list of cases in which he claims

this Court has identified “numerous factual

circumstances where the potential for judicial bias

was too great to be constitutionally tolerable.”

Whisenhant’s petition at p. 13. However,

Whisenhant’s analysis of this Court’s decisions

regarding judicial bias misses the mark.

The cases cited by Whisenhant in his petition do

not support his argument, but instead, support the

complete opposite conclusion, which was reached by

the Court of Appeals. All of the cases cited by

Whisenhant fall neatly within the two limited

instances in which this Court has held that recusal is

required under the Due Process Clause based on a

“probability of actual bias”: 1) when a judge benefits

financially from the outcome of a case and 2) when a

judge was the object of a defendant's contempt. See

Tumey v. Ohio, 273 U.S. 510 (1927) (judge benefited

financially from outcome of case); Offutt v. United

States, 348 U.S. 11 (1954) (judge was object of

defendant’s contempt); In re Murchison, 349 U.S. 133

(1955) Gudge was object of defendant’s contempt);

Mayberry v. Pennsylvania, 400 U.S. 455 (1971)

(judge was object of defendant’s contempt); Ward v.

Village of Monroeville, 409 U.S. 57 (1972) (judge

benefited financially from outcome of case); Aetna

Life Ins. Co v. Lavoie, 475 U.S. 813 (1986) Gudge

benefited financially from outcome of case).

Whisenhant’s petition at pp. 13-14. The facts of

Whisenhant’s case do not compare with the facts of

those cases in which this Court has found that the

probability of actual bias warrants recusal.

Tumey, Murchison, and their progeny have no

application in deciding whether the Alabama courts’

18

decision was contrary to clearly established Supreme

Court precedent. Whisenhant has not cited a

decision from this Court that discusses the situation

where a trial judge receives a draft order from the

prosecutor that is not served on defense counsel but

grants the relevant motion filed by defense counsel.

Thus, the state court decision is not contrary to, nor

an unreasonable application of, clearly established

federal law as determined by this Court.

B. The Legal Principles Recently

Announced By This Court in Caperton

Are Also Inapplicable to Whisenhant’s

Case.

This Court’s recent decision in Caperton does not

provide any support to Whisenhant’s claim that the

Alabama courts’ denial of his judicial bias claim was

contrary to, or involved an unreasonable application

of, clearly established federal law; nor does the Court

of Appeals’ holding below conflict with Caperton.

The legal principles announced in Caperton are off

point and the extreme facts of Caperton are not

present in Whisenhant’s case.

Claiming that the Court of Appeals’ holding is in

“direct conflict” with this Court’s precedent,

Whisenhant contends that the Court of Appeals

failed to follow the rule reaffirmed in Caperton that

“the Due Process Clause has been implemented by

objective standards that do not require proof of

actual bias.” 129 S.Ct. at 2263; Whisenhant’s petition

at p. 11. However, Whisenhant fundamentally

misconstrues this Court’s holding in Caperton.

Contrary to Whisenhant’s suggestion, this Court did

not announce a rule that all claims of judicial bias

raised under the Due Process Clause do not require

19

proof of actual bias. Instead, this Court

acknowledged in Caperton that the objective

standard of inquiring into the probability of actual

bias in judicial bias cases had only been applied in

two instances: 1) when a mayor-judge benefited

financially from a defendant's conviction and 2) when

a judge was the object of a defendant's contempt. See

Caperton, 129 S.Ct. at 2259-2262. This Court simply

extended this objective standard in a limited fashion

to claims of judicial bias in which a person with an

interest in a case provided extensive campaign

contributions to the particular judge hearing that

case.

Specifically, this Court concluded that “there is a

serious risk of actual bias-based on objective and

reasonable perceptions-when 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.” Id. at 2263-2264. This Court further

noted that even among judicial bias cases involving

campaign contributions and election, that the facts of

Caperton were extreme and that “[a]pplication of the

constitutional standard implicated in this case will

thus be confined to rare instances.” Id. at 2265, 2267.

Accordingly, Caperton is off-point as “clearly

established precedent” in the context' of

Whisenhant’s case. The facts which comprise

Whisenhant’s claim of judicial bias regarding Judge

McRae have nothing to do with raising campaign

funds or directing Judge McRae’s election campaign.

Moreover, nothing in Caperton requires a state court

under the Due Process Clause to consider a judge’s

“probability of actual bias” in a factual situation

20

where a judge receives a proposed order — benefiting

the defendant — that was not served on the defense.

Even if Caperton could be stretched beyond its

holding to apply to this specific factual situation

although it does not apply — Whisenhant would still

not be entitled to habeas relief because the state

courts’ decision must be viewed through the

deferential lens of AEDPA. See 28 U.S.C. § 2254. At

the time of the state court Rule 32 proceedings,

Caperton had not been decided and thus, the legal

principles announced in Caperton were not “clearly

established” for purposes of reviewing the state

courts’ decision. See 28 U.S.C. § 2254(d) (1). In any

event, this Court need not go that far in its review

because the legal principles announced in Caperton

simply do not apply to the facts of Whisenhant’s

claim.

Therefore, the Court of Appeals’ determination

that Whisenhant’s case did not fall within the

limited instances in which this Court has held that

the “probability of actual bias” on the part of a judge

requires recusal under the Due Process Clause is

correct, even in light of Caperton. More important to

the immediate question before this Court, the

Alabama courts’ denial of Whisenhant’s judicial bias

claim was neither contrary to, nor involved an

unreasonable application of clearly established law

as determined by this Court. 28 U.S.C. § 2254(d).

21

CONCLUSION

The Court should deny Whisenhant’s petition for

writ of certiorari.

Respectfully submitted,

Troy King

Alabama Attorney General

s/ J. Clayton Crenshaw

J. Clayton Crenshaw*

Assistant Attorney General

Counsel of Record*

Thomas R. Govan, Jr.

Assistant Attorney General

State of Alabama

Office of the Attorney General

500 Dexter Avenue

Montgomery, Alabama 36130

Tel: (334) 242-7300

Fax: (334) 353-3637

October 21, 2009 ccrenshaw@ago.state.al.us