7th Circuit: Judge should have disqualified herself in sentence challenge

July 21, 2016

The 7th Circuit Court of Appeals ruled Wednesday that a federal judge in Indianapolis should have excused herself from hearing a man’s petition regarding his sentence because she was the one who sentenced him while she was a judge in state court. In doing so, the federal appellate court overturned two lines of decisions.

Robertson Fowler pleaded guilty to unlawful possession of a firearm charge and a habitual offender enhancement in Marion Superior Court. He was sentenced to 30 years, 15 years for the possession offense and an extra 15 on account for his criminal history, by Judge Jane Magnus-Stinson. While his case was pending on appeal, the Indiana Supreme Court ruled that a prior conviction used to establish status as a “serious violent felon” can’t also be used to establish status as a habitual offender.

Fowler’s appellate attorneys did not bring up Mills v. State, 868 N.E.2d 446 (Ind. 2007). The Court of Appeals affirmed, and later upheld the denial of post-conviction relief, noting that his plea agreement waived the benefit of Mills.

Fowler then filed a petition in federal court claiming ineffective assistance of counsel. That petition was heard by Magnus-Stinson, who moved to the federal bench, first as a magistrate judge in 2007, then as an Article III judge in 2010. She denied his petition for the same reasons as the COA.

The 7th Circuit, in an opinion authored by Judge Frank Easterbrook, focused on the procedural issue with Magnus-Stinson hearing the case. A federal judge is always disqualified from hearing a collateral attack on a judgment he or she entered or affirmed as a state judge, he wrote. She should have turned this proceeding over to another judge.

The case led the Circuit Court to look at United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985), which made a distinction between 28 U.S.C. sections 455(a) and (b). Based on Balistrieri, the 7th Circuit refuses to consider Section 455(a) arguments on appeal. That section says a judge shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned. Section 455(b) outlines other circumstances where a judge may disqualify himself, such as serving as a lawyer on the case previously or any kind of financial interest in the subject matter or party in the proceeding.

Easterbrook noted the 7th Circuit is the “odd circuit out,” and decided to overrule Balistrieri and its successors to the extent they hold that arguments under Section 455(a) cannot be raised on direct appeal.

The Circuit Court also overruled its line of cases in United States v. Ruzzano, 247 F.3d 688, 694 (7th Circ. 2001) and United States v. Johnson, 680 F.3d 966, 979 (7th Cir. 2012) to the extent that they forbid appellate review of judicial-disqualification issues in the absence of a motion in the District Court. Fowler did not file a motion in the federal court seeking to disqualify Magnus-Stinson. Easterbrook pointed out that the U.S. Supreme Court has allowed litigants to seek disqualification despite the absence of a protest in the court where the disqualification judge sat. Cases from that court treat the participation of a disqualified judge as a form of structural error, which may be noticed at any time.

This opinion was circulated to all active judges on the 7th Circuit and none favored a hearing en banc. Robertson Fowler III v. Keith Butts, superintendent, New Castle Correctional Facility, 15-1221, is remanded for a decision by a different District judge.


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