William Hill v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION FILED. [08-51300 Vacated and Remanded] Judge: CDK , Judge: CES , Judge: PRO. Mandate pull date is 12/09/2010 [08-51300]

William Hill v. Rick Thaler, : 08-51300 Case Director

Document: 00511297715 Page: 1 Date Filed: 11/18/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 18, 2010 N o . 08-51300 Lyle W. Cayce Clerk

W I L L I A M ETHRIDGE HILL, P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:07-CV-399

B e fo r e KING, STEWART, and OWEN, Circuit Judges. P E R CURIAM:* A lo n g with the parties and their respective counsel, the district judge who d e c id e d this habeas case apparently overlooked the fact that he had been a m e m b e r of the three-judge panel of the Texas Court of Appeals, Third District, t h a t decided the petitioner's direct appeal. Hill v. State, Nos. 03-01-00232-CR, 0 3 -0 1 -0 0 2 3 3 -C R , 2002 Tex. App. LEXIS 8534 (Tex. App.--Austin Dec. 5, 2002).
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Dockets.Justia.com

Case: 08-51300 Document: 00511297715 Page: 2 Date Filed: 11/18/2010

No. 08-51300 The relevant federal statute provides that "[a]ny justice, judge, or magistrate ju d g e of the United States shall disqualify himself in any proceeding in which h is impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Such a s it u a t io n arises when a federal judge in a habeas case reviews the validity of a d e c is io n in which he previously participated as a judge in state court. See C le m m o n s v. Wolfe, 377 F.3d 322, 327 (3d Cir. 2004); Rice v. McKenzie, 581 F.2d 1 1 1 4 , 1118 (4th Cir. 1978). Although the statute also provides that this basis for d is q u a lific a tio n may be waived by the parties after "a full disclosure on the r e c o r d of the basis for disqualification," 28 U.S.C. § 455(e), the Code of Conduct fo r United States Judges provides that the conflict is not waivable if the judge " h a s participated as a judge . . . [in] the proceeding or has expressed an opinion c o n c e r n in g the merits of a particular case," Administrative Office of U.S. Courts, C o d e of Conduct for United States Judges Canon 3(C)(1)(e), 3(D) (2009). Whether or not this basis for disqualification is waivable, based on our review o f the record no disclosure and waiver occurred in this case. Therefore, we are r e q u ir e d to vacate the judgment of the district court and to remand to the Chief J u d g e of the District Court for the Western District of Texas for reassignment u n d e r the rules of that court. V A C A T E D and REMANDED.

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