« Ind. Courts - "DCS to Appeals Court: You Can't Make Us Hire More Caseworkers" | Main | Ind. Gov't. - The Right to Hunt and Fish Amendment will be on the November Ballot »

Thursday, July 21, 2016

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, disqualifying the district court judge

In Robertson Fowler, III v. Keith Butts (SD Ind., Magnus-Stinson), a 12-page opinion, Judge Easterbrook writes [ILB emphasis]:

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.

While his case was on appeal, the Supreme Court of Indiana 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 assistance of counsel in his initial appeal. The district court denied 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 counsel’s omission. 2015 U.S. Dist. LEXIS 6419 (S.D. Ind. Jan. 21, 2015). Fowler contends in this court that the state’s 2012 appellate decision was wrong: that he had not waived the benefit 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 collateral attack, also was the person who sentenced Fowler during 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) therefore requires the case to be heard by a different federal judge. * * *

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. * * *

The Supreme Court has allowed litigants to seek disqualification 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. Pennsylvania, 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 disqualified 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 judicial-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.

Posted by Marcia Oddi on July 21, 2016 09:11 AM
Posted to Ind. (7th Cir.) Decisions