Alfred Ray Bradshaw v. O.L. McCotter Director, Texas Department of Corrections

ON SUGGESTION FOR REHEARING EN BANC

(Opinion April 4, 1986 (5th Cir.1986), 785 F.2d 1327)

JERRE S. WILLIAMS, Circuit Judge:

The petition for rehearing by O.L. McCotter, Director, Texas Department of Corrections, is GRANTED.

This case involves the petition for habeas corpus of Alfred Ray Bradshaw who is serving a term for burglary in the Texas Penal System. The district court granted his petition ordering a new out-of-time appeal or a new trial. Bradshaw’s claim was that one of the judges on the Texas Court of Criminal Appeals who heard his appeal was Judge Jim Vollers whose name also appeared on the state’s brief on the appeal as the state prosecuting attorney. The evidence shows that when Judge Vollers was appointed to the Texas Court of Criminal Appeals he did recuse himself in every case in which he had played any part on the appeal as the state prosecuting attorney. It was a common although not universal custom in Texas, however, to include the name of. the Texas state prosecuting attorney on briefs on criminal appeals although he had not read them nor approved of them. Judge Vollers did not recuse himself in the cases where he actually had had nothing to do with the appeal.

In our decision in Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir.1986), we affirmed the granting of the habeas corpus petition by the district court even though Bradshaw’s was one of the cases in which Judge Vollers had not participated at all in the áppeal brief although his name did appear first on the brief.

An intervening decision of the United States Supreme Court convinces us that we wrote too broadly and held incorrectly in Bradshaw’s case. Just over two weeks after we affirmed the district court in this case, the Supreme Court handed down the decision of Aetna Life Insurance Co. v. Lavoie, — U.S. —, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). In that case the Alabama trial court jury'had awarded $3,500,-000 in punitive damages against an insurance company for alleged bad-faith refusal to pay a valid claim. The Alabama Supreme Court affirmed this decision by a vote of 5 to 4. One of the justices on the majority, actually the one who wrote the per curiam opinion, was shown to have pending exactly the same kind of lawsuit for punitive damages against an insurance company. The Supreme Court concluded that this justice had a “direct, personal, substantial, [and] pecuniary” interest in upholding the exceeding large punitive damages award because it enhanced the value of his own punitive damages claim in the suit which he had pending. Lavoie, — U.S. at —, 106 S.Ct. at 1586. The Court concluded that the justice was disqualified and his participation in the case was a violation of due process of law. The Court emphasized in its opinion that the justice’s “vote was decisive in the 5 to 4 decision.”

Although Lavoie was a civil rather than criminal case, we follow its reasoning. Lacking a showing in this case that Judge Vollers’ vote was controlling, no prejudice has been shown as the result of the conclusion that he should have recused himself. As Judge Vollers’ vote was not controlling in Bradshaw’s case, we reverse the district court and deny the petition for habeas corpus.

We add that we are not modifying our conclusion in our original opinion that Judge Vollers should have disqualified himself in all cases in which his name appeared on the brief as a prosecutor. As we said in our earlier opinion, “[t]he appearance of Vollers’ name on the prosecuting attorney’s brief undermined a fundamental aspect of our criminal justice system: a judge’s neutrality.” Bradshaw, 785 F.2d at 1329. Therefore, we delete only the final two paragraphs of our opinion in now holding that no constitutional violation was shown even though Judge Vollers sat on the appeal when he should have disqualified himself. Under the persuasive reasoning of Lavoie, the constitutional violation would result only if Judge Vollers’ vote was controlling, and it was not in Bradshaw’s case.

No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.

REVERSED.

PETITION FOR HABEAS CORPUS DENIED.