Evidence at trial showed that Harrison often
carried a hunting knife and was seen near the fire scene before fire
trucks arrived; that the fire was started by a flammable liquid and
Harrison had purchased kerosene several days before the murders; and
that Harrison confessed to a fellow jail inmate. Charges were not
filed until 2 years after the fire. Harrison was arrested and
returned from Maryland.
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
RIPPLE, Circuit Judge.
Harrison was convicted of the murders of
Stacy Forsee and her two children. He was sentenced to death.
After exhausting his state remedies in the courts of
Indiana, he petitioned for a writ of
habeas corpus in the district court. See 28 U.S.C. §
2254(a). The court granted the writ. The State of
Indiana appeals that decision. See
28 U.S.C. § 1291. We now affirm the judgment of the district court
for the reasons set forth in the following opinion.
A complete recitation of the
facts of this case and of the rulings that led to Mr.
Harrison's habeas petition are set forth
in the district court's very thorough opinion. See
Harrison v. Anderson, 300 F.Supp.2d
690 (S.D.Ind.2004). We recount here only those matters pertinent
to the issue raised on appeal.
On January 17, 1989, the bodies
of 20-year old Stacy Forsee, and her children Tia (3 1/2 years)
and Jordan (21 months) were found among the ruins of the family's
charred home. Forsee had been stabbed; the children had died as a
result of the fire. After an investigation that lasted more than
two years, Mr. Harrison was charged with
arson, with the knowing murders of Stacy and Tia, and with the
felony murder of Jordan.
Charges against Mr.
Harrison were filed in Posey Circuit
Court. Counsel was appointed for Mr. Harrison,
and trial was set for January 6, 1992, before Judge
During the course of
preparations for Mr. Harrison's trial,
defense counsel learned through depositions that, not long before
Forsee was killed, she had told officers of the
Indiana State Police ("ISP") that she feared for her life.
More specifically, she told Detectives Gary Gilbert and Larry
Rhoades that she was being followed by a man in a suspicious van,
that she had information about drug activity in Posey County
involving her ex-boyfriend, Charles Hanmore, and another
individual, Roger Greathouse, and that Judge Redwine had been
present at Greathouse's home when drugs were being unloaded on
Greathouse's property. Based upon this information, one defense
theory was that members of the local drug community, rather than
Mr. Harrison, had targeted Forsee because
of her knowledge of drug activity.
In July of 1991, Judge Redwine
was informed by the parties that his name had been mentioned "in
conjunction with drug information" that Forsee had provided to the
ISP. Judge Redwine indicated that he would not withdraw from the
Subsequently, on September 16, 1991, the defense moved for a
change of venue from the judge. The motion alleged, among other
matters, that Judge Redwine could not rule objectively on the
admissibility of evidence pertaining to Forsee's fear of
Greathouse because of the possibility that the Judge's name might
be mentioned during the presentation of the evidence.
On the same day that the motion
for a change of judge was filed, Judge Redwine telephoned
Greathouse and shared with him the allegations in the motion. The
Judge requested that Greathouse attend the scheduled hearing on
that motion. See State Ct. Vol. 23 at 721.
The following evidence was
presented during the hearing. Detective Rhoades testified that, in
1988, Forsee had reported to the police that Judge Redwine was a
person who was aware of drug activity. A tape recording of this
interview had been made, but subsequently had been misplaced.
Detective Rhoades also testified that he could not investigate
allegations involving public officials without first securing
approval from the Superintendent of the ISP. Additionally,
Detective Rhoades stated that someone recently had made a request
to conduct an investigation. Id. at 561-63. Prior to
dismissing Detective Rhoades as a witness, Judge Redwine engaged
in the following colloquy:
The Court: To your knowledge,
has [Forsee] ever told anyone that I was at a party at Roger
Officer Rhoades: Not to my
The Court: To your knowledge,
has she ever told anyone that I had any knowledge of drug
trafficking in this county.
Officer Rhoades: Just again, as
I testified earlier, the information that she said Chuck Hanmore
provided her with that you were aware of semi loads of marijuana.
The Court: And do you have any
information that would corroborate any of those statements in
Officer Rhoades: No, I do not.
The Court: And at that time did
you indicate to them [defense counsel] that Stacy Foresee [sic]
had told you that I was at some party where drugs were?
Officer Rhoades: No, I did not.
The Court: You have never told
anyone that she told you that?
The Court: And she did not tell
Officer Rhoades: No, she did not.
The Court: Do you have any
reason at all to believe I was at a party where drugs were?
Officer Rhoades: No, I don't.
Detective Gilbert, also of the
ISP, was present during the interview with Stacy Forsee and
testified at the change-of-judge hearing. During Detective
Gilbert's testimony, Judge Redwine again interjected
clarifications and questions into the examination:
Defense Counsel: And in that
interview did she tell you she had been to the FBI?
Officer Gilbert: It is my
understanding that she did, or the FBI was mentioned some time
during that interview.
Defense Counsel: And did she
mention to you that after she had gone to the FBI this van had
started following her?
The Court: She didn't say she
had gone to the FBI. The officer said that she had just said that,
or it was mentioned in the interview. Please make your questions
specific. This is a very important matter, Mr. Warrum. I don't
want you confusing the facts.
Id. at 575. Two pages
later in the transcript, Judge Redwine stated: "She has not said,
the witness has not said that she went to the FBI. The witness
said he doesn't know for sure if she had been or said she was
going." Id. at 577-78.
Judge Redwine took an active
role in other aspects of the hearing as well. Judge Redwine
admitted from the bench that the allegations contained in the
motion "reflect[ ] upon the credibility of this Court," and he
reproved defense counsel for "act[ing] so irresponsibly" by not
investigating the allegations more thoroughly. Id. at
610-12. He took judicial notice of records from a criminal case
involving Forsee's brother, over which he had presided, to
establish that a factual basis supported the guilty plea. Id.
at 627-28. He ordered records in Forsee's son's paternity action
to be made public and played the tape of the paternity hearing to
show that he had not been biased against Forsee. Id. at
628-29. Additionally, Judge Redwine called Forsee's attorney (Ms.
McFaddin-Higgins) in the paternity action as a witness to
establish that the proceeding had been fair. Id. at 636-37,
657, 659. Judge Redwine had Forsee's mother, brother and former
boyfriend (Charles Hanmore) sit in the courtroom and listen to
McFaddin-Higgins' testimony, despite a witness separation order.
Id. at 629-30. He called Greathouse as a witness to testify
that he had never known the Judge to be involved in drug activity.
Id. at 715-24. Finally, Judge Redwine asked defense counsel
if they were alleging that he had any motive to or did kill Forsee.
Id. at 604-06. He stated to defense counsel: "These are
serious allegations reflecting on the credibility of the court....
You have brought a lot of people's names up and dragged them
through the mud. You have probably ruined a lot of people's lives
and reputations...." Id. at 610. Judge Redwine ultimately
denied the change-of-judge motion.
After Judge Redwine denied that
request, Mr. Harrison filed a mandamus
action in the Supreme Court of Indiana to
compel a change of judge; Mr. Harrison
filed a brief in support of that motion, the transcript of the
hearing on the change-of-judge motion, and other record materials
in support of his action. See R.34, Ex.A; State Ct. Vols.
34 & 35. The Supreme Court of Indiana
denied relief without opinion.
The expanded record also
reflects a series of pre-trial rulings that followed the denial of
the change-of-judge motion. According to Mr.
Harrison, these rulings evidence Judge Redwine's efforts to
hinder the defense. They included: (1) refusing to grant the
defense a continuance to respond to the State's late disclosure of
inculpatory DNA test results; (2) granting the State's motion in
limine — even though defense counsel indicated that he was
not ready to respond — to prohibit defense counsel from
making any allegation that a third party had killed Forsee; (3)
excluding defense witnesses disclosed after the deadline,
including Hanmore and Greathouse; and (4) requiring defense
counsel to share with the prosecutor materials that defense
counsel had obtained from a death penalty defense conference,
while not imposing a similar requirement on the prosecutor. See
Harrison, 300 F.Supp.2d at 710-12.
murder trial began on November 6, 1991. There was evidence
admitted that, before the fire trucks arrived,
Harrison had been observed near the scene of the fire on
the night of the murders. There also was evidence that he had
purchased kerosene days before the murders and that a flammable
liquid had started the fire. Finally, evidence was presented that
Mr. Harrison had informed fellow inmates
in a Maryland jail that he had committed the crimes. The jury
acquitted Mr. Harrison of Forsee's murder,
but found him guilty of the remaining counts. The jury then
recommended that Mr. Harrison be
sentenced to death for the murders of both of Forsee's children.
The trial court imposed the death sentence for both counts. After
trial, Judge Redwine refused to compensate defense counsel for
their work on the change-of-judge motion and on the mandamus
action. He characterized these filings as a "completely false and
meritless action for the sole purpose of delaying this trial."
Id. at 712. Finally, defense counsel's regular appointments
from the Posey Circuit Court ended after Mr.
Harrison's trial. Id.
The convictions were affirmed on
direct appeal to the Supreme Court of Indiana,
see Harrison v. State, 644 N.E.2d
1243 (Ind.1995); however, the Supreme Court of
Indiana remanded to the trial court for the preparation of
a capital sentencing order. The trial court complied with the
remand, and the imposition of the death sentence was affirmed by
the state supreme court. See Harrison
v. State, 659 N.E.2d 480 (Ind.1995). The state trial court
subsequently denied Mr. Harrison's
petition for state post-conviction relief; the Supreme Court of
Indiana affirmed the denial of relief.
See Harrison v. State, 707 N.E.2d 767
federal habeas petition raises eleven claims; the district court
addressed only his judicial bias claim. Id. at 696. That
claim essentially alleged:
[T]he circumstances surrounding
Judge Redwine's involvement in the trial of this matter create[d]
a constitutionally intolerable risk of judicial bias such that the
likelihood of bias or its appearance is so substantial as to
create a conclusive presumption of actual bias. He also assert[ed]
that Judge Redwine was actually biased against him and his lawyers.
R.23 at 52. In reply, the
Government contended that Mr. Harrison
had defaulted procedurally on the judicial bias claim for two
reasons: (1) he had not presented fairly this contention to the
state courts; and (2) the Supreme Court of
Indiana adjudicated the claim on an independent and
adequate state procedural ground. The district court rejected both
contentions. It first held that Mr. Harrison
had fairly presented the claim:
The due process argument was
explicitly presented in Harrison's
mandamus petition to the Indiana Supreme
Court at the outset of his prosecution. The argument was renewed
in Harrison's direct appeal. The
Indiana Supreme Court acknowledged that
Harrison was seeking relief based on his
claim that he was denied a fair and impartial trial because of the
denial of his motion for a change of venue from the judge. The
Indiana Supreme Court concluded
Harrison "state(d) no facts in his brief
..., nor can we find any in the record, that indicate that there
was an undisputed claim of prejudice or that the trial court
expressed an opinion on the merits of the controversy."
Harrison v. State, 644 N.E.2d 1243,
1249 (Ind.1995). Whether correct in that assessment of the claim,
the Indiana Supreme Court clearly
recognized Harrison's claim of judicial
bias precisely as it has been reasserted here.
300 F.Supp.2d at 699-700 (emphasis in original).
Secondly, the district court
held that the Supreme Court of Indiana
did not adjudicate the judicial bias claim on an independent and
adequate state ground:
No procedural rule was cited by
the Indiana Supreme Court either in its
Order denying Harrison's mandamus
petition or in Harrison's direct appeal
on this point. Our interpretation of the Indiana
Supreme Court action in rejecting the claim in
Harrison's direct appeal was simply to explain that it had
found no facts establishing Harrison's
claim of prejudice. This was a decision on the merits of the claim
as the Indiana Supreme Court perceived it;
it was not a decision based on a failure to comply with some
procedural requirement of state law.
Id. at 700 (emphasis in
The district court then
proceeded to the merits of the judicial bias claim. It determined
that the Supreme Court of Indiana's
treatment of the judicial bias claim in both the mandamus action
and in Mr. Harrison's direct appeal was
not entitled to the level of deference usually afforded state
court judgments under 28 U.S.C. § 2254(d)(1). The district court
first determined that, because the state supreme court had
reviewed Judge Redwine's denial of a change of judge for an abuse
of discretion (a state law standard), it had not reached the
merits of the federal constitutional claim, despite an opportunity
to do so. Id. at 701. The district court alternatively held
that, even if the Supreme Court of Indiana
had decided the federal claim of judicial bias on the merits, §
2254(d) deference did not apply because the state court's decision
was "contrary to" the precedent of the Supreme Court of the United
Not only did the
Indiana Supreme Court fail to articulate
the proper federal test, but it articulated a test — abuse
of discretion, prejudice to the defendant — wholly
incompatible with the nature of structural error, for which
prejudice is not required, Neder [v. United States,
527 U.S. 1, 14, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)] .... Where
structural error is implicated, and judicial bias is one of the
narrow class of constitutional violations in which structural
error is implicated, harmless error (the obverse of prejudice, in
the present context) is not an option. Tyson v. Trigg, 50
F.3d 436, 442 (7th Cir.1995)....
Id. at 702-03 (emphasis
The district court then
independently reviewed the expanded record and held that:
[A]ctual bias has been
demonstrated not by judicial rulings, but by Judge Redwine's
personal participation in the development of the proceedings
beginning on September 26, 1991. Apart from his rulings, Judge
Redwine's statements and actions preceding trial, at the change of
judge hearing, during trial and in the letter denying certain
attorneys fees, illustrate an unmistakable bias infecting
trial and depriving him of a fair trial. Judge Redwine revealed a
personal interest in protecting his name and the judiciary in
Posey County, an interest he specifically admitted. Apparently,
because of that interest, he denied Harrison's
motion for change of judge, and thereafter made rulings calculated
to remove any mention or implication of his role in
Harrison's defense. As to that defense,
as it was explained in the context of the motion for change of
judge, Judge Redwine's refusal to acknowledge the relevance and
the probative value of the information pertaining to the possible
motives of others to kill Stacy Forsee persisted, despite "repeated
and lucid attempts by [Harrison's] lawyer
to dispel it." United States v. Santos, 201 F.3d 953, 962
(7th Cir.2000). When the allegations supporting the change of
judge request are viewed from Judge Redwine's perspective, "[n]o
one so cruelly slandered is likely to maintain calm detachment
necessary for fair adjudication." Mayberry v. Pennsylvania,
400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).
Harrison is correct in arguing that this
record leaves one "with an abiding impression that the trial judge
permitted himself to become personally embroiled" with the issues.
Ungar v. Sarafite, 376 U.S. 575, 585, 84 S.Ct. 841, 11 L.Ed.2d
Id. at 714 (citations and
parallel citations omitted). The district court accordingly
granted habeas relief. The State timely appealed.
The State first submits that the
district court erroneously concluded that Mr.
Harrison had presented fairly the issue of judicial bias to
the Supreme Court of Indiana during its
direct review of the case. As we noted earlier, the district court
looked to Ellsworth v. Levenhagen, 248 F.3d 634 (7th
Cir.2001), and concluded that the Supreme Court of
Indiana "clearly [had] recognized
Harrison's claim of judicial bias
precisely as it has been reasserted here."
Harrison, 300 F.Supp.2d at 700.
The State does not address
directly any infirmities in the district court's analysis; instead,
it maintains that the intervening decision of the Supreme Court of
the United States in Baldwin v. Reese, 541 U.S. 27, 124
S.Ct. 1347, 158 L.Ed.2d 64 (2004), establishes that "more" is
required to preserve a claim for habeas review than we had
articulated in Ellsworth. The State also argues that Mr.
Harrison's brief to the Supreme Court of
Indiana does not satisfy Reese's
heightened "fair presentment" requirement. Neither of these
arguments are persuasive.
In Ellsworth, we
considered whether the plaintiff properly had presented his Sixth
Amendment claim to the state courts prior to seeking habeas relief.
We began our analysis by explaining, in general terms, the "fair
"Initially, the state courts
must have had a `fair opportunity' to consider a question of
constitutional import before federal collateral review on that
question is appropriate." Kurzawa [v. Jordan, 146
F.3d 435, 441 (7th Cir.1998)] (citing Burgin v. Broglin,
900 F.2d 990, 996 (7th Cir.1990)). "A `fair presentment' of a
petitioner's claims requires that a petitioner give state courts
`a meaningful opportunity to pass upon the substance of the claims
[petitioner] later presses in federal court.'" Spreitzer v.
Schomig, 219 F.3d 639, 645 (7th Cir.2000) (quoting Howard
v. O'Sullivan, 185 F.3d 721, 725 (7th Cir.1999)). To satisfy
that requirement, an inmate must present "both the operative facts
and the legal principles that control each claim to the state
judiciary." Wilson v. Briley, 243 F.3d 325, 327 (7th
Ellsworth, 248 F.3d at
639. We then set forth the four-part test used to determine "whether
a petitioner has fairly presented a claim to the state judiciary":
1) whether the petitioner relied
on federal cases that engage in a constitutional analysis; 2)
whether the petitioner relied on state cases which apply a
constitutional analysis to similar facts; 3) whether the
petitioner framed the claim in terms so particular as to call to
mind a specific constitutional right; and 4) whether the
petitioner alleged a pattern of facts that is well within the
mainstream of constitutional litigation.
Id. We further explained
that, at its core, the task of the habeas court was to "assess[ ],
in concrete, practical terms, whether the state court was
sufficiently alerted to the federal constitutional nature of the
issue to permit it to resolve that issue on a federal basis."
Id. (internal quotation marks and citations omitted).
This language closely resembles
the introductory language employed by the Supreme Court in
Before seeking a federal writ of
habeas corpus, a state prisoner must exhaust available state
remedies, thereby giving the State the opportunity to pass upon
and correct alleged violations of its prisoners' federal rights.
To provide the State with the necessary "opportunity," the
prisoner must "fairly present" his claim in each appropriate state
court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal
nature of the claim.
541 U.S. at 29, 124 S.Ct. 1347 (internal
quotation marks and citations omitted). After articulating the
general parameters of the "fair presentment" requirement, the
Court reviewed the nature of petitioner Reese's claims in state
In relevant part, the petition [to
the state supreme court] asserted that Reese had received
ineffective assistance of both trial court and appellate court
counsel. The petitioner added that his imprisonment is in
violation of [Oregon state law]. It said that his trial
counsel's conduct violated several provisions of the Federal
Constitution. But it did not say that his separate appellate
ineffective assistance claim violated federal law.
Id. at 29-30, 124 S.Ct.
1347 (emphasis in original; internal quotation marks and citations
omitted). A federal district court had determined that Reese's
failure to fairly present his claims of ineffective assistance of
appellate counsel to the state supreme court barred habeas relief.
A divided panel of the Ninth
Although the majority [of the
Ninth Circuit panel] apparently believed that Reese's petition
itself did not alert the Oregon Supreme Court to the federal
nature of the appellate "ineffective assistance" claim, it did not
find that fact determinative. Rather, it found that Reese had
satisfied the "fair presentation" requirement because the justices
of the Oregon Supreme Court had had "the opportunity to
read... the lower [Oregon] court decision claimed to be in error
before deciding whether to grant discretionary review." Had
they read the opinion of the lower state trial court, the
majority added, the justices would have, or should have, realized
that Reese's claim rested upon federal law.
Id. at 30, 124 S.Ct. 1347
(quoting Reese v. Baldwin, 282 F.3d 1184, 1193-94 (9th
Cir.2002) (emphasis in original)).
The Supreme Court then addressed
whether the Ninth Circuit "correctly interpreted the `fair
presentation' requirement." Id. The Court began "by
assuming that Reese's petition by itself did not properly alert
the Oregon Supreme Court to the federal nature of Reese's claim."
Id. at 30. In other words, the Supreme Court assumed that
Reese's petition to the state supreme court did not meet existing
standards for "fair presentment" — such as those
articulated by this court in Ellsworth. The Court then
concluded that, based on this assumption, "Reese failed to meet
the `fair presentation' standard, and the Ninth Circuit was wrong
to hold the contrary." Id. at 30-31, 124 S.Ct. 1347. The
Court, therefore, did nothing to disturb our understanding of what
is necessary to "fairly present" a claim to the state supreme
court in a petition for habeas relief.
The Court in Reese then
went on to explain why the "opportunity" to read the lower state
court opinions, which fully laid out Reese's federal
constitutional claims, was not a substitute for fairly presenting
the federal claim within the petition itself. The Court stated
opportunity means that the
judges could have read them. But to say that a petitioner "fairly
presents" a federal claim when an appellate judge can discover
that claim only by reading lower court opinions in the case is to
say that those judges must read the lower court opinions
— for otherwise they would forfeit the State's opportunity
to decide that federal claim in the first instance. In our view,
federal habeas corpus law does not impose such a requirement.
Id. at 31, 124 S.Ct. 1347
(emphasis in original).
We see little similarity between
the procedural situation before the Supreme Court in Reese
and the one presented here. In Reese, the petitioner
never articulated the federal basis of his claim before the
state supreme court. The Supreme Court of Oregon could have
discovered that Reese was claiming a federal constitutional
violation only by reading the lower state court opinions. Here, by
contrast, Mr. Harrison clearly identified
the federal basis of his judge-bias claim in his brief on direct
appeal to the Supreme Court of Indiana.
See Dye v. Hofbauer, ___ U.S. ___, 126 S.Ct. 5, ___ L.Ed2d
___ (2005) (holding that brief to state supreme court, which
identifies the federal basis of a claim, preserves that claim for
habeas review). Specifically, among the issues that he identified
for the state supreme court, Mr. Harrison
Issue II — The trial
court denied the defense motions for ... change of judge.... The
denial of these motions constitute erred [sic] under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, Sections 12, 13, 16, 18 and 23 of the
R.34, Ex.B at 12. The federal
nature of these claims was reiterated in the argument section of
his brief. See id. at 16. With respect to the change-of-judge
motion itself, Mr. Harrison stated the
following in his brief:
B. MOTION FOR CHANGE OF JUDGE.
Defendant filed a motion for
change of judge and a hearing was held September 24th, 1991 at
which time the trial court denied the motion. (R. 494 through
915). The Indiana Supreme Court has
already heard this issue and denied the motion prior to trial
after a hearing in the Supreme Court on October 31st 1991. The
issue is now raised for purposes of preserving the same for
would contend he was denied a fair and impartial trial by jury by
not having a change of venue from the judge.
Harrison's direct appeal to the Supreme Court of
Indiana referenced the mandamus action
that he previously had pursued in that court — a
mandamus action in which the federal constitutional claim had been
raised and argued.3
Specifically, the brief in support of Mr.
Harrison's mandamus action stated:
The fundamental principle of due
process and due course of law require that the Defendant have a
Judge impartial and free of the appearance of impropriety,
particularly is this true in a case in which the death penalty has
Harrison is entitled to a fair trial with an impartial jury
and an impartial judge. The Constitution of
Indiana, Article I, Sections 12 and 13, and the
Constitution of the United States, Fifth, Sixth and Fourteenth
If the trial court is incorrect
in its ruling on the change of judge and this Court finds a denial
of rights under the due process or the due course of law clause of
the State and Federal Constitutions, all procedural rules that
would prevent their consideration or leave them to the discretion
of the trial court must yield to the fundamental principle of due
process and due course of law.
R.34, Ex.A at 14, 21-22 (emphasis
Thus, the Supreme Court of
Indiana did not have to read through all
of the lower court opinions to understand that Mr.
Harrison was raising a federal claim. The
federal nature of the claim was articulated in his brief before
the Supreme Court of Indiana, and, in
support of that claim, Mr. Harrison
explicitly referred the state supreme court to the areas in the
record supporting his claim — as well as to prior briefing
of the issue in the Supreme Court of Indiana
itself. These factors clearly distinguish the present
situation from Reese, and we conclude that Reese
does not govern the petition presently before us.
The State makes three other
cursory arguments with respect to procedural default. First, the
State submits that "[to] fairly present any claim of judicial bias,
Harrison was required to provide argument
and authority for his allegation that Judge Redwine was biased
at trial. His rote reference on direct appeal to his pretrial
pleading was temporally incapable of doing so...." Appellant's Br.
at 16 (emphasis in original). The State cites no authority for its
proposition that federal constitutional claims of judicial bias
must be rooted in actions exhibited at trial. Surely prejudice or
interest of a judge may become apparent prior to trial and require
the removal of that judicial officer in order to satisfy the
requirements of due process. See Anderson v. Sheppard, 856
F.2d 741, 745 (6th Cir.1988) ("Bias or prejudice on the part of a
judge may exhibit itself prior to the trial by acts or statements
on his part." (internal quotation marks and citations omitted)).4
The State also contends that, "while
the Indiana Supreme Court did not
expressly find waiver, its disposition of this claim makes clear
that it was based on Harrison's failure
to adequately apprise the court of the factual and legal basis for
his claim." Appellant's Br. at 15. However, we consistently have
held that "[a]n adequate and independent state ground bars federal
habeas review of constitutional claims only if `the last state
court rendering judgment in the case "clearly and expressly"
states that its judgment rests on the state procedural bar.'"
Gomez v. Jaimet, 350 F.3d 673, 677 (7th Cir.2003) (quoting
Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d
308 (1989)). Thus, the State's concession that an express finding
of waiver is not present dooms this argument.
Lastly, the State asserts,
without lengthy discussion, that our case law requires a
petitioner to present both the factual and legal bases of the
federal claim in order to meet the "fair presentment" requirement.
See Appellant's Br. at 17 (citing Verdin v. O'Leary,
972 F.2d 1467, 1481 (7th Cir.1992)). There is no question that
"fair presentment" requires that the state court be apprised of
the "operative facts" as well as "the substance of the
federal claim." Verdin, 972 F.2d at 1474 (emphasis in
original). Mr. Harrison satisfied these
requirements. As noted above, the substance of the federal claim
— that his trial was presided over by a biased judge and
that this bias violated federal constitutional guarantees of due
process — was presented in his brief on direct appeal to
the Supreme Court of Indiana. Similarly,
Mr. Harrison explicitly referred the
state supreme court to the specific area of the record that
supported his federal claim — a record with which the
Supreme Court of Indiana already was
familiar by virtue of the mandamus action. Consequently, Mr.
Harrison has satisfied the fair
filed his habeas petition after enactment of the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), and, therefore, we are
bound by AEDPA's restrictions on federal review of state court
rulings. Under AEDPA, a writ of habeas corpus may be granted only
if Mr. Harrison demonstrates that the
state court's adjudication of the claim was contrary to, or an
unreasonable application of, federal law as determined by the
Supreme Court of the United States, see 28 U.S.C. §
2254(d)(1); Williams v. Taylor, 529 U.S. 362, 403-04, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000), or if the decision was
premised on an unreasonable determination of facts, see 28
U.S.C. § 2254(d)(2).
This standard, however, applies
only to claims which have been adjudicated on the merits. See
Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir.2000). In the
absence of an adjudication on the merits, we employ the general
standard as set forth in 28 U.S.C. § 2243, which requires us to "dispose
of the matter as law and justice require." See Braun, 227
F.3d at 916-17. Of course, even when the AEDPA standard does not
apply — either because the state court's opinion was
unreasonable or because the state judiciary did not address the
constitutional claim — "[a] prisoner still must establish
an entitlement to the relief he seeks." Aleman v. Sternes,
320 F.3d 687, 690 (7th Cir.2003). According to 28 U.S.C. §
2254(a), "a district court shall entertain an application for a
writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States."
2. Characterization of the
With respect to Mr.
Harrison's judge bias/due process claim,
the Supreme Court of Indiana stated:
Defendant contends that he was
denied a fair and impartial trial because of the denial of his
motion for a change of venue from judge. A ruling on a change of
judge in a criminal proceeding is within the trial court's
discretion. We review such a ruling only for a clear abuse of
discretion. Here, defendant states no facts in his brief before
this court, nor can we find any in the record, that indicate that
there was an undisputed claim of prejudice or that the trial court
expressed an opinion on the merits of the controversy.
v. State, 644 N.E.2d 1243, 1249 (Ind.1995) (citing Stidham
v. State, 637 N.E.2d 140, 142 (Ind.1994), and Harrington v.
State, 584 N.E.2d 558, 561 (Ind.1992)).
In reviewing the state court's
decision, the district court held that AEDPA deference was
inapplicable for two reasons. First, the district court explained,
it is evident from its own words
that the Indiana Supreme Court did not
understand Harrison's claim of judicial
bias as presenting a question of federal constitutional import,
and in consequence it cannot be concluded that the
Indiana Supreme Court reached the merits
of the federal claim which Harrison
presents in his habeas petition.
300 F.Supp.2d at 701. Alternatively, the district court concluded
that the state supreme court's adjudication was an unreasonable
application of clearly established law. The district court
The decisions of the
Indiana Supreme Court on the question of
judicial bias are contrary to Supreme Court precedent.... This
conclusion rests on (1) the Indiana
Supreme Court's use of an "abuse of discretion" standard, and (2)
the Indiana Supreme Court's reference to
the absence of prejudice in the trial record, juxtaposed with the
proper federal standard of "a fair trial in a fair tribunal before
a judge with no actual bias against the defendant or interest in
the outcome of his particular case." Bracy v. Gramley, 520
U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997).
300 F.Supp.2d at 702 (parallel citations omitted).
The State now challenges both of
these determinations. It maintains that the district court's
conclusions cannot be reconciled with the Supreme Court's decision
in Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d
263 (2002). We do not believe Early supports the State's
In Early, the Ninth
Circuit had granted habeas relief to a petitioner on a jury-coercion
claim; it had done so without applying AEDPA deference because it
had determined that the state court's adjudication of the claim
was "contrary to established federal law." Id. at 8, 123
S.Ct. 362. In reviewing the Ninth Circuit's ruling, the Supreme
Court first observed that there was no question that § 2254
applied: "The jury-coercion claim in respondent's habeas petition
is the same claim rejected on the merits in his direct appeal
to the state appellate court, and the Ninth Circuit correctly
recognized that § 2254(d) was therefore applicable." Id. (emphasis
The Supreme Court then went on to address the Ninth Circuit's
determination that the state court's adjudication was unreasonable:
[T]he Ninth Circuit observed
that the state court "failed to cite ... any federal law, much
less the controlling Supreme Court precedents." [Packer v.
Hill, 291 F.3d 569, 578 (9th Cir.2002).] If this meant to
suggest that such citation was required, it was in error. A state-court
decision is "contrary to" our clearly established precedents if it
"applies a rule that contradicts the governing law set forth in
our cases" or if it "confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent." Williams v.
Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Avoiding these pitfalls does not require 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. The Ninth Circuit's
disapproval of the Court of Appeal's failure to cite this Court's
cases is especially puzzling since the state court cited instead
decisions from the California Supreme Court that impose even
greater restrictions for the avoidance of potentially coercive
Early, 537 U.S. at 8, 123
S.Ct. 362 (parallel citations omitted; emphasis in original). In
sum, Early holds that a state-court holding is not contrary
to clearly established federal law if it merely fails to cite
Supreme Court precedent, as long as "neither the reasoning nor the
result of the state-court decision contradicts them." Id.
The State contends that the
holding of Early is applicable here because the state
court's application of the abuse of discretion standard in
reviewing the judge-bias claim did not contradict the reasoning of,
or the result in, any constitutional judge bias cases. We cannot
accept this view for two reasons. First, as we noted earlier,
Early does not speak in any terms to the district court's
first reason for rejecting AEDPA deference — that the state
court failed to adjudicate the federal constitutional claim on the
More fundamentally, the Supreme
Court of Indiana's adjudication of Mr.
Harrison's judge bias claim was contrary
to "clearly established Federal law, as set forth by the Supreme
Court." 28 U.S.C. § 2254(d)(1). The Supreme Court of
Indiana reviewed the due process claim
only for a "clear abuse of discretion."
Harrison, 644 N.E.2d at 1249. In its view, that abuse
of discretion only occurs when there is "an undisputed claim of
prejudice" or when "the trial court expresse[s] an opinion on the
merits of the controversy." Id. However, the due process
protection, as guaranteed by the federal Constitution,
indisputably is much broader. The Supreme Court has stated
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 of
law 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." Tumey v. State of Ohio,
273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 [(1927)]. Such a
stringent rule may sometimes bar trial by judges who have no
actual bias and who would do their very best to weigh the
scales of justice equally between contending parties. But to
perform its high function in the best way "justice must satisfy
the appearance of justice." Offutt v. United States, 348
U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 [(1954)].
In re Murchison, 349 U.S.
133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (emphasis added;
parallel citations omitted); see also Franklin v. McCaughtry,
398 F.3d 955, 960-61 (7th Cir.2005). This clear holding of the
Supreme Court of the United States cannot be squared with the view
of the Supreme Court of Indiana —
that the mandate of the federal Due Process Clause is satisfied as
long as there is no "undisputed claim of prejudice" or an
expression by the trial court of "an opinion on the merits of the
controversy." In short, in determining whether the trial court
abused its discretion in denying the change-of-judge motion, the
Supreme Court of Indiana employed an
unreasonable view of the applicable federal standard as
established by the Supreme Court of the United States.6
The general principles
concerning a defendant's due process right to an impartial judge
are clear in the jurisprudence of the Supreme Court. "A fair trial
in a fair tribunal is a basic requirement of due process." In
re Murchison, 349 U.S. at 136, 75 S.Ct. 623. Although this
right encompasses "an absence of actual bias," the contours of
this right cannot be defined with "precision." Id. Indeed,
the Supreme Court has made clear that, when the presiding judge is
not impartial, there is a "structural defect[ ] in the
constitution of the trial mechanism" that "def[ies] analysis by `harmless
error' standards." Arizona v. Fulminante, 499 U.S. 279,
309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Edwards
v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 137 L.Ed.2d 906
(1997); Franklin, 398 F.3d at 960-61 (citing Bracy v.
Schomig, 286 F.3d 406, 414 (7th Cir.2002) (en banc)). For
instance, due process is violated when a judge presides over a
case in which he has a direct, pecuniary interest in the outcome.
Tumey v. State of Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71
L.Ed. 749 (1927). Due process also may be offended if a judge sits
in judgment on a contempt citation and uses that proceeding to "give
vent to personal spleen or respond to a personal grievance."
Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed.
11 (1954). In sum, due process is violated when a judge presides
in a case that "would offer a possible temptation to the average
man ... to forget the burden of proof required to convict the
defendant" or would "lead him not to hold the balance nice, clear,
and true between the state and the accused." Tumey, 273 U.S.
at 532, 47 S.Ct. 437.
We now turn to the events
surrounding the change-of-judge motion in the state court.
Although it is true that, "[o]rdinarily, we presume that public
officials have properly discharged their official duties,"
Bracy v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 138 L.Ed.2d
97 (1997) (internal quotation marks and citations omitted), this
presumption is overcome by the accusation at issue in this case
and by Judge Redwine's response to it. As recounted by the
It was ... evident throughout
the hearing on the motion for change of judge that
Harrison's attorneys were going to
present a defense based on evidence that there were people other
than Harrison of whom Stacy Forsee was in
fear, that Chuck Hanmore and Roger Greathouse were among these
other people, that the basis of this theory consisted of Stacy
Forsee's knowledge of illicit drugs at the Greathouse property,
and that Judge Redwine's name would come up in the course of this
evidentiary presentation. Knowing that the trial court would have
to rule on the admissibility of this evidence,
Harrison had sought a change of judge.
Harrison's attorneys characterized Judge Redwine's
presiding over this trial as being "in the nature of a conflict."
300 F.Supp.2d at 710.
Counsel for Mr.
Harrison attempted, at several points in
the hearing, to explain this conflict to Judge Redwine; rather
than evaluate this submission, Judge Redwine repeatedly refused "to
acknowledge the relevance and the probative value of the
information pertaining to the possible motives of others to kill
Stacy Forsee." Id. at 714; see generally State Ct.
Vol. 23 at 600-08. Indeed, Judge Redwine went so far as to inform
counsel that "[y]our theory doesn't make sense." Id. at
Moreover, through his actions,
Judge Redwine exhibited the very interest that defense counsel had
identified. Judge Redwine demonstrated that he was willing to
forsake the role of impartial arbiter and instead assume the role
of advocate in establishing that he had no involvement with
Greathouse and Hanmore. Having been apprised of the nature of the
alleged conflict of interest, Judge Redwine transformed the
hearing on the change-of-judge motion into a proceeding to
vindicate "the credibility of this Court." Id. at 610. By
way of example only, the following actions of Judge Redwine
support this conclusion: (1) contacting, on an ex parte basis,
Roger Greathouse on the day the motion for change of judge was
filed for the purpose of securing Greathouse's testimony at the
change-of-judge hearing; (2) questioning the ISP Detectives
regarding the nature of Forsee's allegations against him; (3)
taking judicial notice of criminal records with respect to John
Forsee, the victim's brother; (4) making public certain records
from the paternity action involving Forsee's son for the purpose
of establishing that Judge Redwine harbored no prejudice against
Stacy Forsee; (5) eliciting testimony from the attorney who
represented Stacy Forsee in the paternity action to establish that
there was no reason for Forsee to be upset with Judge Redwine; (6)
questioning Forsee's mother, Gloria, as to whether she had any
reason to believe that he would not be fair to both sides in this
case; and (7) stating "unequivocally" on the record that
I have never been to Roger
Greathouse's house, never in my life. I have never been to party
to any where, at any time where cocaine was under any
circumstances. I have never seen a truckload of drugs any where,
even in the cases I tried as a Prosecutor, a County Judge, and a
Circuit Judge, and a Defense Attorney.
Id. at 610. Indeed, Judge
Redwine's active participation in the hearing and his statements
on the record demonstrate precisely the bias that Mr.
Harrison's counsel believed would infect
the trial — Judge Redwine's fear that evidence might
connect him to individuals involved in the drug trade thereby
tainting, or worse ruining, his judicial career. The district
court was eminently correct when it concluded that
[t]his is a case in which actual
bias has been demonstrated not by judicial rulings, but by Judge
Redwine's personal participation in the development of the
proceedings beginning on September 26, 1991. Apart from his
rulings, Judge Redwine's statements and actions preceding trial, [and]
at the change of judge hearing,7
... illustrate an unmistakable bias infecting
James Harrison's trial and
depriving him of a fair trial. Judge Redwine revealed a personal
interest in protecting his name and the judiciary in Posey County,
an interest he specifically admitted.
300 F.Supp.2d at 714 (footnote and parallel citations omitted).
Judge Redwine used the change-of-judge hearing to "give vent to
personal spleen [and] respond to a personal grievance." Offutt,
348 U.S. at 14, 75 S.Ct. 11. He abandoned the role of "an
impartial officer directing the judicial process of truth seeking
and invaded the role of an advocate." United States v. Norris,
873 F.2d 1519, 1526 (D.C.Cir.1989). His desire to vindicate his
name directed his actions and clouded his reasoning; the judge "`bec[ame]
personally embroiled with the petitioner.'" Jones v. Luebbers,
359 F.3d 1005, 1014 (8th Cir.2004) (quoting Offutt, 348 U.S.
at 17, 75 S.Ct. 11).8
did not receive a trial by a judge free from actual bias. His
rights under the Due Process Clause were violated, and he has met
his burden of establishing that he is in custody in violation of
the Constitution of the United States.
For the foregoing reasons, the
judgment of the district court granting the writ of habeas corpus
James P. Harrison