Gary Lee Wheeler v. James McDonough

After oral argument and a thorough review of the record, we conclude that the district court judge erred by failing to recuse himself from Appellant Gary Lee Wheeler’s 28 U.S.C. § 2254 proceedings, where the judge also was the chief judge of the state appellate court that affirmed, on direct appeal, the state convictions now being challenged by Wheeler in his § 2254 petition. In doing so, we join the other circuits which have held that 28 U.S.C. § 455(a) requires a district court judge to recuse himself under similar circumstances. See Clemmons v. Wolfe, 377 F.3d 322 (3d Cir.2004); Russell v. Lane, 890 F.2d 947 (7th Cir.1989); Rice v. McKenzie, 581 F.2d 1114 (4th Cir.1978).

Accordingly, we reverse the district court’s August 24, 2005 order denying Wheeler’s motion to vacate, filed pursuant to Fed.R.Civ.P. 60(b)(6); vacate the district court’s November 14, 2002 order dismissing Wheeler’s § 2254 petition; order that Wheeler’s § 2254 petition be reinstated nunc pro tunc as of the date of its original filing; and direct that Wheeler’s § 2254 petition be assigned to a different district court judge who has not participated in the review of Wheeler’s convictions at issue while serving in the state courts.

REVERSED, VACATED, AND REMANDED TO REINSTATE PETITION.