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West v. McCarty

United States District Court, S.D. Mississippi, Northern Division

February 14, 2018




         This habeas petition brought under 28 U.S.C. § 2254 is before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge F. Keith Ball [17]. Judge Ball recommended that the Petition for Habeas Corpus [1] be denied and that no relief be granted. Petitioner Christopher West filed an Objection [19], but the Court concludes that it should adopt the R&R.

         West bases his request for habeas relief on Circuit Judge Eddie Bowen's refusal to recuse himself. Judge Bowen is the former District Attorney (“DA”) for Simpson County, Mississippi, and he served in that capacity when West was arrested. But eight days before the grand jury indicted West, Bowen was appointed to the bench. West sought recusal, Judge Bowen denied the motion, and the jury convicted West for the sale of methamphetamine. West then appealed to the Mississippi Court of Appeals, alleging that Judge Bowen's prior role required recusal. The Court of Appeals disagreed because, among other things, there was no evidence that Judge Bowen was involved in West's prosecution. Upon review of the record, Judge Ball concluded that the Court of Appeals' decision “did not constitute an unreasonable application of clearly established Supreme Court law.” R&R [17] at 6.

In his Objection, West states that Judge Bowen was the DA during the time my case was bound over to the Circuit Court while bail was set and reduce along with his same staff although he states he had no personal knowledge of the matter. In this matter Judge Bowen had and/or was in a position to have personal knowledge of disputed evidentiary facts concerning the proceedings and/or he certainly served as lawyer in the matter in controversy, and or a lawyer with whom he previously practiced law served during such association as lawyer concerning the mater.

Pet'r's Obj. [19] at 1.

         As an initial matter, the Court cannot accept West's conjecture that Judge Bowen had personal knowledge of the case before he took the bench. The Mississippi Court of Appeals found that he did not. See West v. State, 131 So.3d 583, 587 (Miss. Ct. App. 2013). Instead, the court held:

Judge Bowen had no personal knowledge of, or actual involvement in, West's case prior to sitting as the judge during trial. . . . Additionally, even in his capacity as the district attorney, Judge Bowen exercised no administrative command over West's case. In fact, there is no evidence that Judge Bowen, while serving as the district attorney, had even any indirect involvement with West's case.

Id. These findings control because they were not “unreasonable” based on the state-court record. See 28 U.S.C. § 2254(d); see also Moody v. Quarterman, 476 F.3d 260, 267-68 (5th Cir. 2007). And contrary to his Objection, West is not entitled to an evidentiary hearing. See 28 U.S.C.§ 2254(e).[1]

         So the question is whether West has demonstrated an “unreasonable application of . . . clearly established Federal law.” 28 U.S.C. § 2254(d). Whether a law is clearly established turns on the then existing law as “determined by the Supreme Court of the United States.” Id.; see Williams v. Taylor, 529 U.S. 362, 412 (2000). Whether the application was unreasonable is an objective test. To prevail, West must show not only that the state-court ruling was incorrect but also that it was “objectively unreasonable.” Williams, 529 U.S. at 409. In other words, West is not entitled to federal relief “so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation and internal quotation marks omitted).

         When West's appeal was decided, the United States Supreme Court's “due process precedents [did] not set forth a specific test governing recusal when . . . a judge had prior involvement in a case as a prosecutor.” Williams v. Pennsylvania, -U.S.- 136 S.Ct. 1899, 1905 (2016). But the Court had found that due process requires recusal in cases of actual or presumptive bias. Richardson v. Quarterman, 537 F.3d 466, 475 (5th Cir. 2008). There is no suggestion of actual bias here, and the scope of presumptive bias is limited:

The Supreme Court has only found that a judge's failure to recuse constitutes presumptive bias in three situations: (1) when the judge has a direct personal, substantial, and pecuniary interest in the outcome of the case, (2) when he has been the target of personal abuse or criticism from the party before him, and (3) when he has the dual role of investigating and adjudicating disputes and complaints.

Id. Of these categories, the dual-role example comes the closest to West's argument. But the Supreme Court has never extended that presumption to judges who played no role in prosecuting the case.[2]

         Absent Supreme Court authority, West cites three cases from Alabama's Court of Criminal Appeals to make his point: Crawford v. State, 686 So.2d 199 (Ala.Crim.App.1996); Crumpton v. State, 677 So.2d 814 (Ala.Crim.App.1995); and Ex parte Sanders, 659 So.2d 1036 (Ala.Crim.App.1995). These cases generally concluded that a judge should recuse himself if, before taking the bench, he served as district attorney during the life of the case. But as stated, these intermediate appellate cases from Alabama do not set “clearly established law.” Cardenas, 820 F.3d at 202 (noting that not even Fifth Circuit cases set “clearly established law”).

         West's Alabama cases fall short for another reason-they were decided under Alabama ethical cannons rather than the Due Process Clause of the United States Constitution. “Generally, the constitutional due process requirements regarding judicial impartiality are much narrower than the requirements found in recusal statutes and ethical canons.” Richardson, 537 F.3d at 474 n.4. Accordingly, West has failed to show that the Mississippi Court of Appeals ...

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