Donald Jones v. Al Luebbers ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1132
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Donald Jones, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Al Luebbers, *
*
Respondent - Appellee. *
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Submitted: April 17, 2003
Filed: March 3, 2004
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Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Petitioner-Appellant Donald Jones, a state prisoner under a sentence of death,
appeals the district court’s1 denial of habeas relief. On appeal, Jones argues that the
state trial judge who presided over his capital murder trial was biased and that his
public defenders were ineffective due to their failure to secure the trial judge’s
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
recusal. Because the courts of Missouri did not “make an unreasonable determination
of the facts in light of the evidence presented in state court proceedings,” 28 U.S.C.
§2254(d)(2), nor apply “clearly established Federal law, as determined by the
Supreme Court of the United States” in an unreasonable manner, 28 U.S.C. §
2254(d)(1), we affirm.
I. Background
In 1994, a jury convicted Jones of first degree murder and armed criminal
action for bludgeoning his grandmother with a knife block, stabbing her to death,
stealing her money, and stealing her car and other personal property to buy crack
cocaine. The jury recommended, and the trial judge imposed, a sentence of death for
the murder and a sentence of life imprisonment for the armed criminal action.
Because we granted a certificate of appealability only as to Jones’s claims of trial
court bias and ineffective representation, we address in detail only facts that are
relevant to the issues of representation and bias. The Missouri Supreme Court set
forth facts relevant to the underlying crime in State v. Jones, 979 S.W.2d 171, 176
(Mo. 1998) (en banc), cert. denied, 525 U.S. 1112 (1999).
Jones’s case was assigned to Missouri trial judge Charles D. Kitchin on
November 19, 1993. Karen E. Kraft, a managing attorney in the public defender’s
capital case office, represented Jones. On January 1, 1994, Ms. Kraft assigned
assistant public defender Ellen A. Blau to assist in Jones’s defense. On April 21,
1994, Ms. Kraft and Ms. Blau, on behalf of Jones, moved for Judge Kitchin’s
disqualification. They alleged that Judge Kitchin was biased against Ms. Blau and
requested that a separate judge rule on the disqualification motion.
The allegations of bias stemmed from an unrelated, 1992 case before Judge
Kitchin. In that case, Ms. Blau arranged for a public defender to represent a state’s
witness against her client after the state’s witness had already pled guilty and agreed
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to testify against her client. After receiving representation, the state’s witness
withdrew his plea and invoked his Fifth Amendment rights. Facing the loss of the
witness, the state dropped the charges against Ms. Blau’s client. Judge Kitchin
believed that Ms. Blau’s interference with the state’s witness was unethical and
potentially criminal. Judge Kitchin recommended that the prosecutor charge Ms.
Blau with a crime and refer the matter to Missouri’s attorney discipline body to
investigate and sanction Ms. Blau for her role in the state’s loss of its witness.
In a different 1992 case, Judge Kitchin criticized Ms. Blau’s representation of
a client and warned Ms. Blau that her behavior came close to suborning perjury.
Finally, Ms. Kraft and Ms. Blau alleged that Judge Kitchin expressed bias against an
expert witness they proposed for use in Jones’s defense, psychiatrist Sadashiv
Parwatikar, M.D.
Ms. Kraft and Ms. Blau did not move for disqualification until approximately
five months after the initial assignment of the case to Judge Kitchin. Accordingly,
Jones was not entitled to an automatic transfer to a different judge. See Mo. R. Crim.
P. 32.07 (providing for an automatic change of judge upon timely application).
Instead, Judge Kitchin granted a hearing on the issue of disqualification for cause and
denied the request to assign another judge to preside over the disqualification hearing.
At the hearing, another assistant public defender, Richard Scholz, appeared on behalf
of Jones. Mr. Scholz renewed the earlier request to have a different judge preside
over the disqualification hearing, but Judge Kitchin again denied the request.
During the disqualification hearing, Judge Kitchin questioned witnesses and
served as a witness. Mr. Scholz’s behavior at the hearing clearly angered Judge
Kitchin. Judge Kitchin summarily overruled a number of Mr. Scholz’s objections,
ordered Mr. Scholz to remain silent, threatened to hold Mr. Scholz in contempt, and
threatened to imprison Mr. Scholz for contempt. After repeatedly asking the court
reporter to note Judge Kitchin’s angry demeanor and hostile tone, Mr. Scholz
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requested and received leave to withdraw from the case. After Mr. Scholz withdrew,
Ms. Kraft assumed the role as primary counsel. When Ms. Kraft attempted to ask a
particular witness whether or not he had “observed a bias on the part of Judge
Kitchin” towards Ms. Blau, Judge Kitchin sustained the prosecutor’s objection,
repeatedly stated that he disapproved of Ms. Blau’s earlier behavior, and stated
emphatically that he would note the fact of his disapproval in his written order. Later,
when questioned by Ms. Kraft about Ms. Blau, Judge Kitchin responded:
There’s no question I think it was a gross violation of the canons of
ethics and totally improper and a total outrage that such a thing was
done. I[‘ve] been in this business thirty years. I know of no other case
where any attorney went to a state’s witness [and] got the state’s witness
a lawyer who later told him to take the Fifth.
Judge Kitchin admitted that he discussed Ms. Blau’s conduct in the earlier cases with
several other judges. In his written order to deny the motion for disqualification,
Judge Kitchin wrote, “The Court . . . believed then and believes now that Ellen Blau’s
actions in that matter were both improper and unethical.”
Jones points to additional instances following the disqualification hearing that
demonstrate Judge Kitchin’s anger with Ms. Blau. During voir dire at Jones’s trial,
Ms. Blau objected to a question by the prosecutor. Judge Kitchin cut off Ms. Blau
before she could finish her objection and called counsel to the bench. At this bench
conference, Judge Kitchin scolded Ms. Blau for making a speech in front of the
prospective jurors. Ms. Blau attempted to make a record regarding Judge Kitchin’s
angry demeanor. After Ms. Blau suggested that Judge Kitchin was angry, Judge
Kitchin stated, “I certainly am, because you have no business making a long,
rambling speech and statement that was not in fact a legal objection in the presence
of the jury. That kind of thing should be done at the bench.” It is not clear from the
record whether the prospective jurors were able to hear or observe this conference at
the bench.
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Finally, additional instances of hostility from Judge Kitchin towards Ms. Blau
occurred outside the presence of the jury during an instruction conference, during a
telephone conference to schedule Jones’s sentencing hearing, and during the
sentencing hearing. At the instruction conference, Judge Kitchin refused Ms. Blau’s
request to place a proposed instruction in the record and referred to her request as
“ridiculous.” Ms. Blau stated via affidavit that, during a telephone conference to
schedule sentencing, Judge Kitchin became angry, abusive, and threatening when she
told him that neither defense counsel would be available for a proposed sentencing
date. According to Ms. Blau, Judge Kitchin said that if Ms. Kraft or Ms. Blau did not
appear for a later date, they would be held in contempt. Finally, at sentencing, Ms.
Blau attempted to make a record of the fact that Judge Kitchin had threatened to hold
her in contempt during the telephone conference. Judge Kitchen said that her claim
was “false and a direct lie” and that what he had said was that “there would be
sanctions imposed if you didn’t show up today.” Ms. Blau claimed her statements
were not lies, and Judge Kitchin replied, “Oh, yes they are, young lady, and you know
it.”
Jones raised the issues of trial court bias and ineffective representation (for
counsel’s failure to secure Judge Kitchin’s recusal or, in the alternative, for Ms.
Blau’s failure to withdraw as counsel) in a post-trial motion to the state trial court
under Missouri Rule of Criminal Procedure 29.15. Jones requested an evidentiary
hearing on all of the issues in his Rule 29.15 motion. The trial court granted an
evidentiary hearing only as to certain issues not presently before our panel and did
not grant an evidentiary hearing as to the issues of judicial bias or the related issue
of ineffective assistance. At the Rule 29.15 hearing, counsel advised the court that
an evidentiary hearing was not necessary as to many of the claims, including the
claims of bias and the related claims of ineffective assistance.
Ultimately, a Missouri trial court judge other than Judge Kitchin denied Jones’s
Rule 29.15 motion. This judge found that the allegations of judicial bias were
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grounds for direct appeal but not grounds for relief in a post-conviction proceeding.
The Missouri Supreme Court then heard Jones’s appeal from the denial of his Rule
29.15 motion in consolidation with his direct appeal. Regarding the allegations of
bias, the Missouri Supreme Court determined that the issue of bias was an issue of
state law rather than an issue of federal constitutional rights. Relying on Missouri
authority, the Missouri Supreme Court rejected Jones’s claims of bias and wrote:
Jones does not allege facts to show that the judge was biased against
him personally or against the merits of his case. It is relatively easy for
a party in litigation to claim that he cannot get a fair trial because the
judge dislikes his lawyer. We trust trial court judges in the first instance
to discover whether such contentions are legitimate and to disqualify
themselves in appropriate circumstances. Where as here the judge does
not disqualify himself, we have only the record to review to determine
whether this alleged animosity has in fact infected the trial with a bias
whose source is extrajudicial. Upon this review, we are unable to find
such bias manifested to the jury that would cause us to grant a new trial.
The above quoted portion of the trial transcript [referring to the
exchange during voir dire] is the only portion of the record that Jones
can cite to show judicial partiality, and plainly, no bias appears.
Jones, 979 S.W.2d at 179.
Regarding Jones’s claim that Judge Kitchin should not have presided over his
own disqualification hearing, the Missouri Supreme Court again relied on state law.
The court held that because the facts underlying the request for recusal were known
to Judge Kitchin, and because these facts were not sufficiently in dispute, Judge
Kitchin appropriately determined that he was not required to have another judge
address the motion to disqualify. Id. (citing State ex rel. Ferguson v. Corrigan, 959
S.W.2d 113 (Mo. 1997) (en banc) and State v. Taylor, 929 S.W.2d 209, 220 (Mo.
1996) (en banc)). Finally, having disposed of the claims of bias, the Missouri
Supreme Court dismissed Jones’s related ineffective assistance claims.
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Jones next filed a habeas petition in the United States District Court for the
Eastern District of Missouri. Jones listed thirty-one claims for relief and requested
an evidentiary hearing. The district court rejected all claims, including Jones’s claims
of bias, and stated, “since petitioner has not cited any additional facts in this action
and because the issue being argued is a state law question, this issue is not cognizable
for federal habeas corpus review, therefore, no evidentiary hearing is necessary and
the claim for relief on this ground must be denied.” Regarding the issue of Judge
Kitchin’s refusal to recuse himself from presiding over his own disqualification
hearing, the district court found no evidence to refute the Missouri Supreme Court’s
finding that the evidence before Judge Kitchin was insufficient to require referral to
another judge. Finally, regarding Jones’s related ineffective assistance of counsel
claims, the district court noted the repeated efforts of counsel to secure Judge
Kitchin’s recusal and stated, “[a]dditionally, the fact that there has been a completely
inadequate demonstration of any bias of Judge Kitchin, the failure to get the judge
disqualified cannot be error let alone Constitutional error.”
We granted certificates of appealability and now address the issues of Judge
Kitchin’s alleged bias, his refusal to recuse himself from the disqualification hearing,
and the ineffective assistance of Jones’s counsel.
II. Standard of Review
In the habeas setting, a federal court is bound by the AEDPA to exercise only
limited and deferential review of underlying state court decisions. 28 U.S.C. § 2254;
Williams v. Taylor, 529 U.S. 362, 402-13 (2000). Accordingly,
habeas relief "shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless" the state
court's decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States," or "was based on an unreasonable
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determination of the facts in light of the evidence presented in the State
court proceeding."
Robinson v. Crist, 278 F.3d 862, 865 (8th Cir. 2002) (quoting 28 U.S.C. § 2254(d)).
A state court decision is contrary to clearly established Supreme Court
precedent if "the state court arrives at a conclusion opposite to that reached by [the]
Court on a question of law or . . . decides a case differently than [the] Court has on
a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A state court
decision involves an unreasonable application of clearly established Supreme Court
precedent "if the state court identifies the correct governing legal principle from [the]
Court's decisions but unreasonably applies that principle to the facts of the prisoner's
case." Id. Finally, a state court decision involves "an unreasonable determination of
the facts in light of the evidence presented in state court proceedings," 28 U.S.C. §
2254(d)(2), only if it is shown that the state court's presumptively correct factual
findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Boyd v.
Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001) ("There is sufficient record
evidence to support such a finding and, thus, it would not constitute an unreasonable
determination of the facts in light of the evidence presented at trial.").
In this instance, the Missouri Supreme Court characterized the issue of bias as
a matter of state law. See Jones, 979 S.W.2d at 177-78 (“Questions concerning a
judge’s qualification to hear a case usually are not constitutional questions; rather,
they are questions answered by common law, statute, or the code of judicial
conduct.”). Accordingly, it neither identified nor purported to apply any “clearly
established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2245(d)(1). The fact that a state court does not rely on United States
Supreme Court precedent, however, does not prevent our review of the reasoning and
result expressed in a state court’s judgment. Early v. Packer, 537 U.S. 3, 7 (2003)
(per curiam) (“[a]voiding [reversal on Federal habeas review] does not require
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citation of our cases – indeed, it does not even require awareness of our cases, so
long as neither the reasoning nor the result of the state-court decision contradicts
them.”). Under Early, it is the substance of the state court’s decision that is subject
to habeas review.
Before we may conduct this review, however, the habeas petitioner must have
fairly presented the issue to the state court as a matter of Federal law. Picard v.
Conner, 404 U.S. 270, 275 (1971) (“[o]nce the federal claim has been fairly presented
to the state courts, the exhaustion requirement is satisfied”); Odem v. Hopkins, 192
F.3d 772, 775 (8th Cir. 1999) (“The exhaustion requirement is satisfied if the prisoner
gave the state courts a ‘fair opportunity’ to apply controlling legal principles to the
facts that are relevant to his federal constitutional claim.”). Here, the state argues that
Jones presented the issue of bias to the state courts only as a matter of state law and
that habeas review is precluded. Our review of Jones’s Rule 29.15 motion reveals,
however, that he characterized the issue of judicial bias as a due process violation.
Further, review of Jones’s arguments before the Missouri Supreme Court reveals that
he fairly presented the issue of bias as a violation of his rights under the Due Process
Clause of the Fourteenth Amendment. As a result, it is clear that Jones fairly
presented his federal claim to the state courts. Accordingly, his claims for habeas
relief are not procedurally defaulted, and we may review the Missouri Supreme
Court’s disposition of his claims to ensure that this disposition is consistent with a
reasonable application of, and does not contradict, controlling Supreme Court
authority.
III. Discussion
“[C]learly established Federal law, as determined by the Supreme Court of the
United States”, 28 U.S.C. § 2254(d)(1), recognizes not only actual bias, but also the
appearance of bias, as grounds for disqualification:
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A fair trial in a fair tribunal is a basic requirement of due process.
Fairness of course requires an absence of actual bias in the trial of cases.
But our system has always endeavored to prevent even the probability
of unfairness. To this end no man can be a judge in his own case and no
man is permitted to try cases where he has an interest in the outcome.
That interest cannot be defined with precision. Circumstances and
relationships must be considered. This Court has said, however, that
“Every procedure which would offer a possible temptation to the
average man as a judge . . . not to hold the balance nice, clear, and true
between the State and the accused denies the latter due process of law.”
In re Murchison, 349 U.S. 133, 136 (1955) (quoting Tumey v. Ohio, 273 U.S. 510,
535 (1927)) (omission in original). Although clearly established, this standard is
inherently vague. Murchison, 349 U.S. at 136 (noting that the impermissible interest
that might cause an average person as a judge to stray from impartiality “cannot be
defined with precision.”). Application of this vague standard, when viewed through
the deferential lens of Williams v. Taylor and the AEDPA, necessarily leaves state
courts considerable latitude to pronounce rulings that do not contradict, and are
reasonable applications of, Murchison and Tumey. This is especially true when the
allegations of bias do not relate to pecuniary interests or procedural infirmities, but
rather, relate to alleged personal animosity and instances of stern courtroom
administration.
Where a judge’s interest in the outcome of a case is pecuniary, application of
the rule from Murchison and Tumey is simple and the need for disqualification
usually will be clear. For example, the Court found a due process violation and held
there to be an impermissible appearance of bias where a judicial officer’s
compensation depended at least in part on obtaining convictions. Tumey, 273 U.S.
at 535. Similarly, the Court found a due process violation where an appellate judge
participated in a case and set forth a rule of law applicable in a separate, pending
proceeding in which the appellate judge was personally involved as a litigant. Aetna
Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986).
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In the context of contempt proceedings, which often follow heated arguments
and hostile comments, tempers understandably flare. Accordingly, allegations of
personal bias are not uncommon in such proceedings. See Ungar v. Sarafite, 376 U.S.
575, 583-84 (1964); Murchison, 349 U.S. at 136-38; Offutt v. United States, 348 US.
11, 17 (1954). Where such allegations arise from contemptuous behavior in closed
proceedings that evade outside review, the appearance of impartiality is great,
application of the rule is simple, and due process may require disqualification. In
Murchison, 349 U.S. at 136-38, the Court faced allegations of bias arising from
Michigan’s one-person grand jury procedure. In that case, the Court held that where
a judge “was at the same time complainant, indicter, and prosecutor” the judge could
not later preside over a contempt proceeding regarding one of the grand jury
witnesses. Id. at 135. The Court said, “[h]aving been a part of that process a judge
cannot be, in the very nature of things, wholly disinterested in the conviction or
acquittal of those accused.” Id. at 137.
By contrast, application of the rule is not as simple where the alleged bias is
personal and the case involves no closed proceedings or alleged procedural
infirmities. In such cases, the general rule that the Court articulated in Murchison and
Tumey does not require disqualification unless the potential for bias is sufficiently
great to tempt an “average man serving as a judge” to stray from impartiality. Id. The
test for determining whether a potential for bias rises to this level is an objective
inquiry:
The test in determining if a judge’s bias should be presumed in a
particular case is whether, realistically considering psychological
tendencies and human weaknesses, the judge would be unable to hold
the proper balance between the state and the accused. In making this
inquiry we, of course, presume the honesty and integrity of those serving
as judges.
Dyas v. Lockhart, 705 F.2d 993, 996-97 (8th Cir. 1983) (citing Tumey, 273 U.S. at
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532; Withrow v. Larkin, 421 U.S. 35, 47 (1975); and Taylor v. Hayes, 418 U.S. 488,
501 (1974)). In applying this test, the Court explained that we are not to hold judges
to a superhuman standard that would allow no expressions of emotion, and that we
are to presume the ability of judges to rule impartially notwithstanding personal
attacks and challenges to their authority. Liteky v. United States, 510 U.S. 540, 555-
56 (1994); Ungar v. Sarafite, 376 U.S. 575, 583-84 (1964). However, disqualification
may be proper where “[t]he record discloses not a rare flareup, not a show of
evanescent irritation–a modicum of quick temper that must be allowed even judges
. . . [but] that instead of representing the impersonal authority of law, the trial judge
permitted himself to become personally embroiled with the petitioner.” Offut, 348
U.S. at 17 (finding a reduction in an attorney’s contempt sanction necessary where
the judge presiding at the contempt hearing had become personally embroiled and
displayed excessive, ongoing hostility towards the attorney during the attorney’s
representation of a client in an underlying trial).
In Ungar, for example, disqualification of a judge from a post-trial contempt
proceeding was not necessary even though the judge had been the target of
contemptuous remarks in the form of a personal attack. 376 U.S. at 583-84. There
the Court said, “We cannot assume that judges are so irascible and sensitive that they
cannot fairly and impartially deal with resistance to their authority or with highly
charged arguments about the soundness of their decisions.” Id. at 584. Later, in
Liteky v. United States, 510 U.S. 540, 555-56 (1994), the Court stated:
Not establishing bias or partiality . . . are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds
of what imperfect men and women, even after having been confirmed as
federal judges, sometimes display. A judge’s ordinary efforts at
courtroom administration – even a stern and short-tempered judge’s
ordinary efforts at courtroom administration – remain immune.
Id. (not addressing a due process challenge, but interpreting 28 U.S.C. § 455 (1974),
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the federal statute that governs the disqualification of federal judges). Accordingly,
we must examine the allegations of bias in the present case in the context of these
teachings and not presume that “a stern and short-tempered judge’s ordinary efforts
at courtroom administration” directed towards counsel are adequate grounds to find
bias against a defendant.
Here, the Missouri Supreme Court assessed the allegations of bias against
Judge Kitchin and determined, in effect, that Judge’ Kitchin’s history with Ms. Blau
and his expressions of anger and annoyance in the courtroom did not reflect bias
towards Jones’s defense, but instead, fell within the broad latitude that trial judges
possess to carry out courtroom administration. The Missouri Supreme Court found:
[I]n the instant case, the record does not support a claim that the trial
judge’s attitude towards defense co-counsel affected the jury in its fact
determinations or sentence recommendation. There is only one place in
the trial record that appellant can cite to support his claim that the trial
judge’s bias affected the trial. . . . From [the trial record] it is not clear
that the judge’s anger was shown towards defense co-counsel in his
remarks in front of the jury, or whether the anger was shown only at the
bench out of the jury’s hearing. Furthermore, Jones does not allege
facts to show that the judge was biased against him personally or
against the merits of his case.
Jones, 979 S.W.2d at 178-79 (emphasis added).
Upon reviewing the instances of hostility identified by Jones, we do not believe
Judge Kitchin’s demeanor was wholly unjustified nor do we believe that Judge
Kitchin’s reactions exceeded that which “imperfect men and women, even after
having been confirmed as . . . judges, sometimes display.” Liteky, 510 U.S. at 555-
56. Mr. Scholz and others in the disqualification hearing were uncooperative and
failed to follow the court’s instructions. Because annoyance, or even anger, that a
judge might express during trial proceedings is not necessarily grounds for
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disqualification, and because there is no indication of bias towards Jones and no
showing that any demonstration of anger or annoyance infected jurors, we conclude
the Missouri Supreme Court reasonably determined that the influences upon Judge
Kitchin were not such as would offer “a possible temptation to the average man as a
judge not to hold the balance nice, clear, and true between the State and the accused.”
Murchison, 349 U.S. at 136.
Regarding Judge Kitchin’s refusal to recuse himself from his own
disqualification hearing, Jones cites, and we find, no clearly established Federal law
as defined by the Supreme Court of the United States that would require recusal.
Because the facts relied upon to allege bias were known to Judge Kitchin and were
not in dispute, Jones’s claims of a due process violation are without merit. Because
we presume the honesty and integrity of judges, Withrow, 421 U.S. at 47, we do not
presume judges incapable of assessing their own fitness to hear cases on essentially
undisputed facts. The record amply reflects that Judge Kitchin openly admitted his
dissatisfaction with Ms. Blau. The record clearly demonstrates that, in presiding,
Judge Kitchin did nothing to suppress evidence of his history with, or attitude
towards, Ms. Blau.
Finally, because relief is not warranted on the underlying claims of bias, relief
is not warranted on the related claim of ineffective assistance of counsel. Without a
finding of bias, the ineffective assistance of counsel claim fails under the prejudice
requirement of Strickland v. Washington, 466 U.S. 668, 690 (1984).
The judgment of the district court is affirmed.
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