Kevin Miles v. Charles Ryan , 697 F.3d 1090 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN ARTICE MILES,  No. 10-99016
Petitioner-Appellant, D.C. No.
v.
CHARLES L. RYAN,
 4:01-cv-00645-RRC
District of Arizona,
Respondent-Appellee. Tucson
 ORDER
Filed September 28, 2012
Before: Susan P. Graber, Circuit Judge.
Order;
Statement by Judges Berzon and Tallman
ORDER
Appellant’s motion for recusal is DENIED.
BERZON, and TALLMAN, Circuit Judges:
Appellant’s motion to recuse Judge Graber was, in its for-
mat, directed to all three judges on the three-judge panel in
this case. Under this Circuit’s procedures, however, each
judge may decide for himself or herself whether recusal is
appropriate. See, e.g., Suever v. Connell, 681 F.3d 1064 (9th
Cir. 2012); Feminist Women’s Health Center v. Codispoti, 69
F.3d 399 (9th Cir. 1995); 28 U.S.C.A. § 455. We therefore
directed the motion to Judge Graber alone, who has denied
the recusal request.
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Should our silence be misunderstood, however, we wish to
state that were it appropriate for us to have participated in the
recusal decision, we would have voted to deny the motion.
Indeed, we regard the request itself as an inappropriate one.
The basis for the requested recusal was a tragedy in Judge
Graber’s life that occurred close to forty years ago, her
father’s murder and the subsequent prosecution of the perpe-
trator. The suggestion was that Judge Graber cannot fairly
decide this capital murder case because of that history and
some broad similarities between the two criminal cases.
Judge Graber has been a judge for almost twenty-five
years. In that time, she has sat on numerous capital murder
cases, voting to affirm some and to reverse others. She has
never been asked to recuse in any of them and never has.
There is absolutely no reason she should do so now.
All of us as judges have had life experiences that could be
said to affect our perception of the cases that come before us.
Some of us have served as prosecutors and others have not;
some have experienced discrimination as women or minori-
ties and others have not; some are intensely religious and oth-
ers are not, and our religions vary; some have children and
other relatives with disabilities and illnesses, physical and
mental, while others do not; some have had personal experi-
ence, directly or through family members, as crime victims,
while others have not; some have relatives who are police
officers, civil rights activists, or journalists, and others do not;
some served in the armed forces and others did not; some had
personal experiences as immigrants and others did not. These
life experiences do not disqualify us from serving as judges
on cases in which the issues or the facts are in some indirect
way related to our personal experiences.
Here, the suggested basis for questioning Judge Graber’s
impartiality is especially flimsy, as the acts on which it is
based happened close to forty years ago. Judge Graber has
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had that much time to absorb her loss. And there can be no
rational suggestion that Judge Graber has anything at all to
gain by denying habeas relief in this capital case, which con-
cerns a crime and a defendant with nothing to do with her
loss.
We addressed a somewhat similar issue in Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012), when proponents of Califor-
nia’s Proposition 8 amendment banning same-sex marriage
sought to vacate the district court’s judgment on the ground
that Judge Vaughn Walker, the deciding judge, should have
recused himself because he was gay and was in a same-sex
relationship at the time he presided over the case. See Perry
v. Schwarzenegger, 790 F. Supp. 2d 1119, 1121 (N.D. Cal.
2011). According to the proponents, this fact created a situa-
tion in which Judge Walker’s “impartiality might reasonably
be questioned,” the same standard petitioner invokes here. See
id. at 1129; 28 U.S.C. § 455(a). Chief Judge Ware, to whom
the case was assigned following Judge Walker’s retirement,
denied the motion to vacate, explaining that “[i]n a case that
could affect the general public based on the circumstances or
characteristics of various members of that public, the fact that
a federal judge happens to share the same circumstances or
characteristic . . . is not a basis for disqualifying the judge.”
Id. at 1125. We affirmed. Perry v. Brown, 671 F.3d at 1095-
96.
This court’s standard for determining whether a judge’s
“impartiality might reasonably be questioned” is as follows:
[We] ask whether a reasonable person with knowl-
edge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned. . . . The
“reasonable person” is not someone who is hyper-
sensitive or unduly suspicious, but rather is a well-
informed, thoughtful observer. The standard must
not be so broadly construed that it becomes, in
effect, presumptive, so that recusal is mandated upon
11862 MILES v. RYAN
the merest unsubstantiated suggestion of personal
bias or prejudice.
United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008)
(citations and internal quotation marks omitted). No “well
informed, thoughtful observer,” particularly one who has fol-
lowed Judge Graber’s jurisprudence over the years, would
believe that Judge Graber’s tragic experience many years ago
would so color her otherwise exemplary sense of duty and
judgment as to render her biased or partial in the particular
case.
Further, the motion for recusal in this case is peculiarly
timed. This case has already been decided, with Judges Gra-
ber and Tallman voting to affirm the denial of habeas relief
in this death penalty case and Judge Berzon voting to reverse
the penalty but not the conviction. The case is currently pend-
ing on a petition for rehearing. Although new counsel was
substituted while the case was pending, there is no reason
why the information about Judge Graber recited in the recusal
motion, derived from a very simple Internet search, could not
have been found by the former lawyers or the new ones
before the opinion issued. Indeed, the motion states that the
general historical facts were known, but not the details. To
make the motion after the initial outcome of the case was
known renders it even more inappropriate than its content
alone would indicate — which, as we have said, is itself con-
siderable.
We well understand that this is a death penalty case, and
that the petitioner’s lawyers properly regard it as their duty to
try appropriately to raise every colorable issue that could pos-
sibly redound to their client’s benefit. But asking for the
recusal of a member of this court who has decided capital
cases for over two decades because of something that hap-
pened well before she became a judge is a request lacking
even colorable merit. And doing so by reciting in detail the
facts of a long ago, tragic incident in her life, requiring her to
MILES v. RYAN 11863
relive them yet again and exposing them anew to public view
is, in our opinion, beyond the limits of appropriate representa-
tion.