Gary Lee Wheeler v. James McDonough , 210 F. App'x 988 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ .U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 19, 2006
No. 05-15242
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00910-CV-ORL-28-JGG
GARY LEE WHEELER,
Petitioner-Appellant,
versus
JAMES MCDONOUGH,
CHARLIE CRIST,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 19, 2006)
Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.
PER CURIAM:
After oral argument and a thorough review of the record, we conclude that
*
Honorable Pasco Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
the district court judge erred by failing to recuse himself from Appellant Gary Lee
Wheeler’s 28 U.S.C. § 2254 proceedings, where the judge also was the chief judge
of the state appellate court that affirmed, on direct appeal, the state convictions
now being challenged by Wheeler in his § 2254 petition. In doing so, we join the
other circuits which have held that 28 U.S.C. § 455(a) requires a district court
judge to recuse himself under similar circumstances. See Clemmons v. Wolfe, 377
F.3d 322 (3d Cir. 2004); Russell v. Lane, 890 F.2d 947 (7th Cir. 1989); Rice v.
McKenzie, 581 F.2d 1114 (4th Cir. 1978).
Accordingly, we reverse the district court’s August 24, 2005 order denying
Wheeler’s motion to vacate, filed pursuant to Fed. R. Civ. P. 60(b)(6); vacate the
district court’s November 14, 2002 order dismissing Wheeler’s § 2254 petition;
order that Wheeler’s § 2254 petition be reinstated nunc pro tunc as of the date of
its original filing; and direct that Wheeler’s § 2254 petition be assigned to a
different district court judge who has not participated in the review of Wheeler’s
convictions at issue while serving in the state courts.
REVERSED, VACATED, AND REMANDED TO REINSTATE PETITION.
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