Habeas – Procedural Default
“Adequate presentation of a claim requires a petitioner to present both the operative facts and the legal principles that control each claim to the state judiciary.” (Quoting, Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007).) Suh procedurally defaulted his theory of recusal based on the appearance of bias, where it was different from the theory of actual bias he presented to the state court.
Habeas Review – Recusal
A claim that recusal was required solely based on appearance of bias without any possibility of actual bias is a habeas non-starter, given that “(t)he Supreme Court has never held, or even intimated, that the due process clause requires recusal under such circumstances[.]”
The court’s discussion rehearses the discrete areas in which due process requires recusal:
- The judge’s “direct, personal, substantial, pecuniary interest in a case”;
- A conflict arising from the judge’s participation in an earlier proceeding;
- Any instance where “the probability of actual bias is high enough.”
The court also stresses the distinction between statutorily and constitutionally mandated recusal:
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 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 federal recusal statute establishes stricter grounds for disqualification than the Due Process Clause”). Left with no legal legs to stand on, Suh’s petition cannot be granted.
