Legal Case Summary

Good morning. First matter for argument this morning is Cory Miller, who is the ruling Hill Hendricks and Owl and his givens. Good morning. May please the Court, Mary Gibbons, for Cory Miller. You are on respectfully requested five minutes of the bottle time. That's exactly right. Thank you. Initially, let me start by saying that what is not alleged in this case is any personal animosity by Judge Martini towards Mr. Miller. What is alleged here is only that Judge Martini's position initially as the member of the House of Representatives and his comments regarding a specific case in the House of Representatives gave rise to a situation that under three sections of the statute called for his disqualification to serve as the federal judicial officer in the 20 to 54 proceeding of Bobby Mr. Miller. All of which is to say that when we are ultimately going to be applying with respect to all three subsections is an objective test. Well, what we certainly as to 455A, we are applying an objective test. That's the, I think, somewhat mischaracterized catch-all provision. That actually is the provision that looks towards the perception of impartiality. As to B1 and B3, there are those who are casting mandatory terms in regard to any exact knowledge possessed by the judge or a bias in prejudice as well, but certainly in this case we are emphasizing the issue of knowledge and particularly extra-divisional knowledge. Is there any indication that the time Judge Martini made the determination he was aware that he had, seven or eight years ago, made this statement on the floor of the House of Representatives? Is there any indication that he knew he had done that? Yes, in the record, or only by the other record here. Is there anything that indicates that he knew or that he didn't know? That he, a number of years previously, made a statement concerning this matter. There's no indication in the record either way that he knew or that he did not know. This is not a situation as was presented in, in Wilgerburg, the Supreme Court case where the judge serves the trustee of the hospital and actually didn't know that some proceedings had happened on the board of trustees meeting and then came to that knowledge and eventually revealed it. So what do we do to presume that he knew or that he didn't know or make? No, excuse me, just so I understand the question. No, that he made the statement or no, that there was a connection between his statement and this.

.. That's good, that's good, a denim. Then he knew that eight years ago he had made a statement concerning the petitioner's involvement. Well, I think that in the ordinary course, one would have to... If there's going to be a presumption, one would have to presume that one remembers one's actions. I actually remember when I did the last week, and not because of Alzheimer's, because of that, you know, that's a dangerous thing to start saying eight years ago, I can't begin to tell you what I did. Well, we do presume knowledge in many areas. However, here what you have is not what I hate to characterize as a garden variety crime. This is a crime that was... It's also a garden variety statement, and that was one of my two reasons for asking for a clarification of Judge Cowan's question. Because the nature of some statements, and I'm curious to know what the record reveals about this one, made by members of Congress is that a certain fiction prevails with respect to most of them that are published in the Congressional record, that is to say they never in fact have been delivered on the floor as statements of speeches. The delivery has been a, at one point, in term a manual delivery, now an electronic one to the Congressional record. Is there anything in this record that clarifies whether this was an oral statement or speech given by then Congressman Martini, or whether it was something simply transmitted to and then published in the Congressional record? The only evidence we have is the statement that was submitted in the appendix that is the written transcription of it. It does indicate the date, and it does indicate in the statement itself. This is not something in the nature of just a generic statement. It reads as if it's a transcript. Mr. Martini, Mr

. Speaker, I rise today to address the House of Representatives. I practically, practically all of the statements that I'm referring to that appear in the Congressional record, but that have never been delivered under the rules are permitted to be that way, that still no indication that they in fact have been delivered. Let me ask you something more about the statement itself, not simply about whether or not it was delivered personally on the floor by then Congressman Martini. But the statement itself, one, does not indicate in any way the identity of the petitioner here, Mr. Miller, correct? That's correct. In fact, it betrays a certain lack of knowledge of the fact that there had in fact been arrests made of individuals implicated in this crime several days before the statement was even published and or delivered, correct? That's true. However, it, while it does not identify Mr. Miller by name, it certainly identifies Mr. Vlava by name, and the case gained its notoriety not because of Mr. Miller or anything about him personally, but about Mr. Vlava and about her specific characteristics and the specifics of the crime. The additional point that I think it's important to note in regard to the statement, not only is it almost a eulogy to Mr. Vlava, it does indicate in one place a particular familiarity with the circumstances of the crime that were involved in the issues before now Judge Martini, and that is in the second full paragraph where it says she was attacked by a notice, and the Los Angeles who had approached her car and demanded money, when the young woman told her that they did not have any money, one of them had fired shots through the driver's side window. She was struck by the barrage of bullets or best friend in the community where laughter teased. So there seems to be a very detailed familiarity with if nothing else, the very specifics of how her death came about. Perhaps even more telling for your position is not only that the crime is described in some detail, not generic anti-crime speech, but that the crime itself was, I'm from New Jersey myself, with widely published in North Jersey, at the Paris and the area of papers. It was quite a thing, I know, vividly. I do too as well, Your Honor, and as I pointed out in the material that I submitted regarding the subsequent coverage, it continues to be publicized in a way that sadly most crimes are not. There are annual tributes to this victim, she's identified by name, her mother appeared at the, I think the mothers against wilds are knowing in mom, but carrying her picture. So this has been a crime that has stayed very much in the public view, if not statewide, certainly within the area of North Jersey. Does that make any difference under subsection B, or is that really a subsection A attribute for your position? Well, it certainly goes most directly to subsection A, which focuses on the reasonable person's view of impartiality, but to the extent that B1 and B3 are specific examples of the types of conduct behaviors I don't want to make it sound for Jordan, in any way, that give rise to this problem of perception of the judiciary as lacking in fairness, or this particular judge is lacking in fairness. Those are specific examples that Congress has set out, and one of those happens to be the government employee and the expression of opinion by a government employee

. Let me stop you right there, because well we're on B, I'd like to look at B1, and just for clarification, ask you what proceeding is contemplated here for purposes of B1 grounds, B1 talks about mandatory disqualification, where he has a personal bias of prejudice concerning the part of your personal knowledge of disputed evidentiary facts concerning the proceeding. Is the relevant knowledge for this provision knowledge regarding the claims that are raised in the habeas petition, where does it go beyond that and then accomplish all of the phases of trial and the kind of post-conviction review? My interpretation of the proceeding language would mean the proceeding that the judicial officer is presiding over such that he or she has some personal knowledge of disputed facts or bias of prejudice. It would be the proceeding, whether it's a habeas proceeding, whether it's any other kind of proceeding that might be before a judicial officer. What about B3's particular case and controversy, which what is the particular case and controversy that you focus on from purposes of your position here? Is it simply the habeas petition? I would say that it would generally be the criminal conviction of Mr. Miller. The habeas proceeding, although it's obviously a separate proceeding in its federal court, is part and parcel of the review process that the Constitution mandates for a state criminal conviction or a force for a state criminal conviction. The habeas proceeding is really not part of the criminal case. It's not even a criminal case, it's a separate case. Why should there be connection between the habeas case and something that is said about a criminal case? Is there a different side of the court? There are different sides of the court, but it's the same case that's seeing both sides of the court. And both courts, the state court, the federal court, the particular case and controversy still to this day remains Mr. Miller's conviction and whether or not that conviction satisfy constitutional requirements. We're not talking about some other case involving Mr. Miller. We're talking about the very same case. But given, well, are we talking about the very same case for the reasons that Judge Collins' question suggests? And if we are not, can we really say, again, for purposes of the language of B3, that the statement here in Constitution A, that the opinion concerning the merits, the merits of what? The habeas or the underlying criminal prosecution? Well, to the extent that the habeas addresses the merits of the underlying criminal prosecution, I think that we are looking at an evolution of the same case because the issues that were before A court initially in the criminal case. The habeas are going to be whether or not the state court made some kind of error of constitutional dimension, you have a federal constitutional dimension. That's correct. And nevertheless, one of the federal judges, the district judges looking at that, is going to be analyzing the very case and controversy that was before the state court. In that interprotect, you know, not really. We do a lot of habeas. With every state conviction is a federal habeas case that the rate we're going here. And in a habeas review, you're merely trying the defendant's petitioner, maybe guilty as hell, you might admit it

. And you're just saying that he's guilty, but it was a violation of his constitutional rights, therefore we're going to set it aside. Absolutely. And so it's really not speaking to the merits of the underlying case, you're really speaking to whether or not, as Judge Smith indicated, whether or not it was a constitutional conviction. So we should make it different to the public. Does it make a difference? Under A, it would be the public perception of whether you're sitting on a direct appeal or trying to case itself, or merely reviewing it on a 2255. I think we can all agree that not only most lawyers, but certainly the public do not have another standing of the finer points of habeas law, particularly under a depot. I think that that's a distinction that is completely lost on the public. So it could also include judges in that. But I want to speak only for myself. I very carefully did not do that. I still have a lot of cup of tea. So in terms of public perception, I think that's absolutely a non-issue. In terms of parsing the language of three, I think unless you're speaking about the merits in the most restrictive way possible as being a factual issue involved in the case, that I think that the merits of the case has a generalized meaning that Mr. Miller says, my conviction for this crime should not stand. And that's the merits of the case. Regardless of whether we give it a civil caption or a criminal caption, regardless of the limitation of issues, regardless of how we look at it through a fine legal lens, it's still the case in controversy. Mr. Miller, your time is up and you have reserved five minutes for the but also I think we'll have you back. Thank you very much. Thank you. Mr. Tony

. Morning, others. May I please the court, a more telling deputy attorney general on behalf of Warden Hendrix and the attorney general of New Jersey? Mr. Tony, speaking only for myself, this case is not about B-Warner B-2, but A does interest me here and isn't it troubling that we do have a matter that is supported by the record before us. It's attained some significant degree of public visibility at the time and in the wake of the crime and even some beyond as it was more generalized to the problems of crime and victims. Well, the fact is that the notoriety of this case almost makes it less likely for or makes the less reason for Judge Martini to have refused himself. Why Judge Martini contributed to some of the visibility of this case when he was not Judge Martini, but Congress with Martini? Well, that I would dispute. I think Euron's point earlier was well taken with respect to the insertion of items in the congressional record by legislative staff. As a common occurrence, there's no evidence in the record that Judge Martini ever said anything with respect to this. The fact that it was very well publicized in North Jersey as Judge Collins said he remembers the case, but yet there is no basis, of course, to recuse Judge Collins from ruling on this issue. The fact that it was- The statement that Judge Martini submitted or spoke to was actually published in one of the either-Patterson News or one of the papers up there. Was it not? I am not aware of that. And Judge Martini's a district in compasses that area. Judge Martini's district that he served from 1995 to 1997 did encompass Patterson as he stated. I am not aware that his statement was reprinted in the Patterson News. That's not in the record, Euron, I'm sorry. I do want to address 55, 455A. I just would like briefly to point the court to a case that I found that specifically addresses the 455B issue that we were discussing earlier. The case of Russell versus Lane, which is 890F second, 947 from the seventh circuit. It was an opinion by Judge Posner, which I unfortunately did not find in time to put in my briefs. But in that case, the seventh circuit specifically said that 455B3 is not a basis to recuse a disreported judge ruling on a habeas petition when the judge discovered that he had been on the state of palette panel because the habeas petition was not the case in controversy. Or assuming the habeas petition is the case in controversy, the state court proceedings were not. So that I think would be persuasive to this court

. The extent that the fact is easily distinguished, of course. Well, in that case, the grounds for recusal were even greater than this case because the judge in Russell versus Lane was actually on the state of palette panel affirming the defendant's convictions. In this case, we have a judge who would then converse many years before, excuse me, seven years before he descended the bench, made a public statement, lamenting the tragic death of a 20-year-old girl who were shot out of Patterson Street corner. What about the passage of time? We just alluded to it again. And what weight should we give to the fact that there is this period of seven to eight years between the offense and the criminal proceedings and the actual habeas ruling that Judge Martini was called upon to me? I think the passage of time weighs in favor of non-recusal. I think that under Section A, the judge would respect only to A, does it implicate either the other two sections or is it, as I am suggesting, really more relevant consideration for A. I think we've only been irrelevant. We've only been a consideration for A. I don't think it has anything to do with whether a judge Martini had personal knowledge of evidentiary facts or whether it was the case in controversy wise. We have the view this from the average lay person in the public, correct? What does the average person in the lay public think when someone makes a high governmental position, makes a statement detailing the actual factual occurrence which resulted from the tragic crime? This is not a general statement about crime. This is about the facts of this crime. And then subsequently, since as a judicial officer, ruling on the bonafidees of the conviction of the petitioner for the crime which he earlier spoke to as being a real tragic affair and illegal act. What would the average person, not someone more trained or just the average person, would they consider that somewhat inappropriate? I don't think that they would consider that inappropriate. I don't think that they would believe that that judge eight years later could be impartial. I don't think that anything that Judge Martini said in his statement whether it was man-hous for or whether it was inserted by his legislative staff was objectionable that anyone in the public, the fact that they did that was not a real is not a real view, is not whether or not we think they would think it was impartial. We have to look at it from the average person and not only in propriety, but we have to view it from the appearance to the public of impropriety even though there was no impropriety. On this record, I have to assume there was no actual impropriety because there's nothing to indicate. He actually knew about this at the time that he ruled on the case. But we look at it as to whether or not there isn't an impropriety or the average person in the public may view it as inappropriate. The appearance of impropriety. Now, what about the average Jando Jando out there? What would they think if a judge ruled on something as a judicial officer which he had earlier spoken to adversely concerning the very crime which he then ruled on? I think the average person in the public would think that any judge who reviewed the record in this case would think it was a tragedy. Excuse me, right? It's stuck right there

. He is the something that is stated and contemplated by Judge Cowan's question. That is, the something spoken to, the something that is later ruled upon. Are they one and the same? No, they're not. The something that has been ruled upon by Judge Martini has nothing to do with what he said in 1995 that he said... No, it doesn't. Because what he said was not, we're already in the tragedy of Cindy Wall of his death was certainly not disputed by the defendant in this matter. And the fact that... It's disputed by the defendant that he's guilty of the crime. He claims it was accidental or whatever. And that certainly is not the tenor of the statement made by Judge Martini when he was a congressman. No, that's correct. His statement can be stated in not many words, but whoever did this is a criminal. But the fact is that Judge Martini was making no determination who did this. And nor did he. Well, no, but Judge Cowan's question is absolutely correct, isn't it? When it suggests that Judge Martini, then congressman Martini's statement was talking about the horrendous name of Judge Cowan. The nature of this crime, he wouldn't talk about an accident, which is what Mr. Miller is contending in effect ultimately happened here. That is that the gun discharged accidentally

. He was talking about an intentional killing, wasn't he? I think that it could be characterized either way. I mean, because I don't think the Judge, excuse me, I don't think congressman was actually saying that it was an intentional killing. I think he was saying that this girl was dead and that she was trying to kill him. I can't buy that. He's lamenting whoever did this is a criminal. And I think you're barking up the wrong tree when you say that. I think the speech is definitely whoever did this is a criminal. And I think your best argument is that there's no connection between that and his judicial proceeding. At least that's it for me. I don't know about my colleagues. And to that point, you get on your well that, look, this is a habeas proceeding we're reviewing here. This is not a criminal proceeding. What do you have to say about that? Well, that's that. Thank you. That's exactly my point. I'm not going without counsel to you or anyone else here, but I'm just telling you, it's a force I've concerned where the paid dirt lies for you. Well, the fact that this case were not before Judge Martini, whether they were before, whether congressman Martini's recitation of the facts, which I think were admittedly incorrect, there was no barrage of bullets in this case. One month, one month, one month, one month, one month, what did you guys, what the issues were in the habeas proceeding? The issues in the habeas proceeding were whether the account were three ineffective systems of counsel claims, which is me too, regarding whether the trial counsel told him that he could testify at the suppression hearing, whether he, the trial counsel, failed the argument that his convention should have been suppressed, and whether the jury was charged adequately, all of which, as the state court's end of the nineteen eight found, had no merit. And there is no basis in this case for a determination that any of the state court decisions on this matter will contrary to a clearly established federal law. There was no basis for the defendant to be granted habeas for leave. And let me take you back a few minutes to a question I asked you when you were answered, because you didn't really answer it at length or with the specificity I was looking for, and that is the effect that the passage of time should have here. I know you stated agreement with the proposition that it should have an effect and that that effect should be down to the benefit of the state's position here, but you really didn't tell us why, what is there, simply in the temporal passage of eight years, that should somehow dissipate any concern about impartiality, that A is directed to protecting against him

. Well, I think it goes directly to the reasonable person standard, whether there was an appearance of partiality. So to the reasonable person, it would matter that this period of time had transpired, why would it matter to the reasonable person? Because I think it's a different situation, a reasonable person who understood that. And what is there in the human experience that would suggest, because we're dealing with something so broad as reasonableness, that would suggest that while this was of considerable interest to then congressman Martini, it should not be of interest to him now, or at least in such a way that it would affect his impartiality. Well, I think that people understand that passions which may have been inflamed at the time of the crime, Wayne over time, they understand that memory, Wayne over time. Oh, okay. So we're seven or eight years out now. Suppose we were five or six years out, would your answer be the same? Yes, what? Suppose we were three or four years out, would your answer be the same? Yes, it would. How about for one or two years out? Then we might have, I mean, one or two years might be different. I'm a very short memory span there, because no matter what your artistic should be used for determining, when it passes into ancient news, yesterday's newspaper, so to speak, and eight years, that's your position. And when do we say it's timely? What standard do we use to measure when that stature limitations runs? Well, Your Honor, I don't think that there can be a bright line rule. I think the standard is what would a reasonable person think. I think clearly eight years is sufficient when you get down two shorter periods of time, that's different case, but that's not the case before. Well, is it just time, though, Ms. Tully? Again, that's part of what my earlier question implied. The reasonable standard for purposes of disqualification or refusal, necessarily contemplates a reasonable person who has knowledge of all the relative facts. Right. I mean, this isn't just some subjective standard. It's an objective standard that assumes that this person has in his cognitive possession, all of the relative facts. What about the relevant facts that at the time the statement was made, it was made by Congressman Martini, and subsequently the contact that is had with this case is by judge-mart. Is there any importer, any weight we should give, not to the mere passage of time, but to the change in responsibilities and interests that Judge Martini now has from when he was a congressman? I think that could also be a fact or yes. Sure. Well, really

. Congressman Martini is making this statement from the House as a legislator trying to... You're not conceiving that he made this from the House. No, I'm not. But I would concede that there's no evidence one way or the other, so the fact is it's in the congressional record. Oh, whatever he made it, he signed it and authorized it. Yes. Yes. Does it make a difference that this is habeas and not the underlying criminal effect? This is a petition or not a criminal defendant we have before us? Yes, absolutely. Does the public, the reasonable person in the public make a distinction between a habeas matter concerning an underlying crime and the actual criminal proceeding? The average person reading the newspaper make that distinction? Understand it? Well, probably not. Then why should it make a difference? Well, for some section B, it does. For some section A, it could... Should those be some of the relevant facts that this reasonable person has within his theoretical possession? Yes. The fact that habeas is not perhaps well known by the late person does not mean that they should not be within the realm of facts that the person is in the position. Well, isn't that a pretty fine legal distinction? I think a reasonable person about the fictional reasonable person evaluating this case should take in... If that person were to have all the facts in the possession, we would understand exactly what Judge Martini was supposed to be evaluating in this habeas petition. And that only went to whether the state worked at applied federal law. Let me test that. Suppose this were a criminal habeas petition that he had in district court. Suppose it was the direct appeal eight years later. It happens, unfortunately, on certain matters. Then when you say your position would be the same. Instead of the habeas, it's a criminal matter that he's actually hearing. Well, I guess I'm trying to understand your hypothesis. Now, I'll just ask you. Okay. So if he was a... Well, if he's an intermediate appellate judge such as this panel, where that had made a difference, where your position would be different. No, it wouldn't. It would be different. It would not be different. So it makes... So for you, as far as your concern, it doesn't make any difference whether it's habeas or direct criminal appeal. In both instances, your position is that he's not violating subsection A. Yes

. Let me test that. Suppose this were a criminal habeas petition that he had in district court. Suppose it was the direct appeal eight years later. It happens, unfortunately, on certain matters. Then when you say your position would be the same. Instead of the habeas, it's a criminal matter that he's actually hearing. Well, I guess I'm trying to understand your hypothesis. Now, I'll just ask you. Okay. So if he was a... Well, if he's an intermediate appellate judge such as this panel, where that had made a difference, where your position would be different. No, it wouldn't. It would be different. It would not be different. So it makes... So for you, as far as your concern, it doesn't make any difference whether it's habeas or direct criminal appeal. In both instances, your position is that he's not violating subsection A. Yes. Okay. So we don't have to even deal with the... Your position would be the same even if this were a criminal matter. What if it were direct appeal and a criminal matter and one of the issues on appeal was sufficient to the other. As to whether or not this was an accidental or intentional act. Well, I think that would be a closer case, but I still don't think there would make any difference. The fact is the evidence... I mean, he had no personal knowledge. There's no case... There's no evidence in the record of where he got the knowledge. He'd very well just could have got it from reading the paper as any judge could have done or as anyone who then could have ascended the bench could have done. Don't make it a close-recase at all these days. It's close enough, these days. You know what I'm saying? The..

. Okay. So we don't have to even deal with the... Your position would be the same even if this were a criminal matter. What if it were direct appeal and a criminal matter and one of the issues on appeal was sufficient to the other. As to whether or not this was an accidental or intentional act. Well, I think that would be a closer case, but I still don't think there would make any difference. The fact is the evidence... I mean, he had no personal knowledge. There's no case... There's no evidence in the record of where he got the knowledge. He'd very well just could have got it from reading the paper as any judge could have done or as anyone who then could have ascended the bench could have done. Don't make it a close-recase at all these days. It's close enough, these days. You know what I'm saying? The... Suppose instead of plain error this had been objected error and judge didn't recuse himself on objection. Would it make any difference to you or would your argument be the same? In other words, there was an objection. Judge, eight years ago you made this statement on the floor. I request that you recuse yourself. Judge, I've made that eight years ago. I was a congressman. You know, I'm a judicial officer now. It's a difficult case. This is a... How about that? Suppose that the objection made he denies it. Would your argument be the same today? My argument would be the same standard. It would be actually stronger because we would have more evidence in the record of what the judge actually did. But you would say... Nevertheless, you would say that it should be affirmed because recusa was not necessary. So it makes no difference to you that this is before it's on plain error rather than objected error. Yeah, correct. Okay, I understand. Thank you

. Suppose instead of plain error this had been objected error and judge didn't recuse himself on objection. Would it make any difference to you or would your argument be the same? In other words, there was an objection. Judge, eight years ago you made this statement on the floor. I request that you recuse yourself. Judge, I've made that eight years ago. I was a congressman. You know, I'm a judicial officer now. It's a difficult case. This is a... How about that? Suppose that the objection made he denies it. Would your argument be the same today? My argument would be the same standard. It would be actually stronger because we would have more evidence in the record of what the judge actually did. But you would say... Nevertheless, you would say that it should be affirmed because recusa was not necessary. So it makes no difference to you that this is before it's on plain error rather than objected error. Yeah, correct. Okay, I understand. Thank you. Thank you. Rebut all. Thank you. Please give it. If I may just address a couple of points that Council made. Initially, I think that it's a very different situation when a judicial officer has functioned as a judicial officer in the past, on the same case, even if it's the state appellate court being reviewed. That's a different role and different function. Whether we agree with that authority and that circuit is a different matter, but it's still a different function than what Judge Martini was doing here, which reads terribly close to being a victim's advocate and not a judicial officer of any kind. And that was perfectly appropriate in his role at the time. Ms. Gibbons, I'm sorry to interrupt, but I have a few questions about the standard of review. Before I ask that, a preliminary question. Did Mr. Miller seek a certificate of appealability with respect to the merits of his habeas petition? Yes, he did. And Mr. Court in here. And that was denied. That's correct. All right. You've conceded in your brief that Plain Error applies. That's correct. And in order to win on the Plain Error Standard, you have to show prejudice

. Thank you. Rebut all. Thank you. Please give it. If I may just address a couple of points that Council made. Initially, I think that it's a very different situation when a judicial officer has functioned as a judicial officer in the past, on the same case, even if it's the state appellate court being reviewed. That's a different role and different function. Whether we agree with that authority and that circuit is a different matter, but it's still a different function than what Judge Martini was doing here, which reads terribly close to being a victim's advocate and not a judicial officer of any kind. And that was perfectly appropriate in his role at the time. Ms. Gibbons, I'm sorry to interrupt, but I have a few questions about the standard of review. Before I ask that, a preliminary question. Did Mr. Miller seek a certificate of appealability with respect to the merits of his habeas petition? Yes, he did. And Mr. Court in here. And that was denied. That's correct. All right. You've conceded in your brief that Plain Error applies. That's correct. And in order to win on the Plain Error Standard, you have to show prejudice. You need to show that the error substantially affected your client's rights. That's correct. And is it not resdued a crime based upon the denial of the certificate of appealability that no reasonable jurist could find that your client could win on the merits? And if so, it doesn't that foreclose you from prevailing under the Plain Error Standard? I think that argument has a circularity to it because what the issues are in terms of seeking the certificate of appealability as to the merits, go right back to Judge Martini's opinion. This court certified the appealability on the recuse of disqualification issue only. If this court were to determine that a different judicial officer should handle the matter, then we would have a different opinion, a different outcome possibly, a different result in the district court. And the issues presented on the certificate of appealability would be different before this court, before the district court. So what you're doing is you're taking what I kind of hesitate to say, but is it tainted opinion and saying, well, you couldn't go any further with this tainted opinion. So therefore, the fact that it's tainted doesn't matter. But there's no evidence of taint. You're asking us to assume taint. You're asking us to assume that Judge Martini remembered what Congressman Martini put in the congressional record or said in the congressional record. This court has already said that the reasonable jurors could not find that your client wins on the merits. And it seems to me that the standard of review here and perhaps even worse, even if we find plain error, yes, right? Selkridge says that it must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Where in the record does it show that Judge Martini did anything that would affect the fairness of the proceeding? I don't see anything in the record other than this assumption that you're asking us to make. Well, certainly as to the public perception of the proceedings, I think that that's certainly our strongest argument. But in terms of looking at the resolution of the habeas issues in the district court, what we're saying is that those issues were resolved by a judicial officer who possessed mandatory disqualification factors in his background. Whether he knew it at the time or not. But see, part of my trouble with these cases, if it had gone on direct appeal, or your client had raised it with Judge Martini, we would have a record review. Judge Martini would be able to illuminate to this court what he remembered, what he didn't remember, whether he said it, whether he read it, whether a staff eroded, he would be able to give us some indication of his knowledge about the incident and Mr. Miller, or lack the arouf. By virtue of not having raised it and on direct appeal, and by virtue of having brought it in the habeas petition, you're asking all of those assumptions to go in your client's favor. If those issues, I guess what I'm saying not so harshly is, if the issue had been joined before Judge Martini, Judge Martini could have very well made a record and say, here's what I said, here's what I remember, and here's what I don't remember

. You need to show that the error substantially affected your client's rights. That's correct. And is it not resdued a crime based upon the denial of the certificate of appealability that no reasonable jurist could find that your client could win on the merits? And if so, it doesn't that foreclose you from prevailing under the Plain Error Standard? I think that argument has a circularity to it because what the issues are in terms of seeking the certificate of appealability as to the merits, go right back to Judge Martini's opinion. This court certified the appealability on the recuse of disqualification issue only. If this court were to determine that a different judicial officer should handle the matter, then we would have a different opinion, a different outcome possibly, a different result in the district court. And the issues presented on the certificate of appealability would be different before this court, before the district court. So what you're doing is you're taking what I kind of hesitate to say, but is it tainted opinion and saying, well, you couldn't go any further with this tainted opinion. So therefore, the fact that it's tainted doesn't matter. But there's no evidence of taint. You're asking us to assume taint. You're asking us to assume that Judge Martini remembered what Congressman Martini put in the congressional record or said in the congressional record. This court has already said that the reasonable jurors could not find that your client wins on the merits. And it seems to me that the standard of review here and perhaps even worse, even if we find plain error, yes, right? Selkridge says that it must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Where in the record does it show that Judge Martini did anything that would affect the fairness of the proceeding? I don't see anything in the record other than this assumption that you're asking us to make. Well, certainly as to the public perception of the proceedings, I think that that's certainly our strongest argument. But in terms of looking at the resolution of the habeas issues in the district court, what we're saying is that those issues were resolved by a judicial officer who possessed mandatory disqualification factors in his background. Whether he knew it at the time or not. But see, part of my trouble with these cases, if it had gone on direct appeal, or your client had raised it with Judge Martini, we would have a record review. Judge Martini would be able to illuminate to this court what he remembered, what he didn't remember, whether he said it, whether he read it, whether a staff eroded, he would be able to give us some indication of his knowledge about the incident and Mr. Miller, or lack the arouf. By virtue of not having raised it and on direct appeal, and by virtue of having brought it in the habeas petition, you're asking all of those assumptions to go in your client's favor. If those issues, I guess what I'm saying not so harshly is, if the issue had been joined before Judge Martini, Judge Martini could have very well made a record and say, here's what I said, here's what I remember, and here's what I don't remember. We would review that for views of discretion, and we could have well concluded well under 455A, your impartiality might would not have reasonably been questioned. Now, you haven't even given him an opportunity to do all that, and you're asking us to assume plain error that substantially affects your client's rights, when this court has already said that the jurors of reason could not find that your client was entitled to relief from the merits. But just a couple of points, if I may. First of all, my client didn't discover this until the very end of the proceedings. This is something that's not within his... And when he did, he actually opted to do nothing, didn't he? By his own admission, his own written admission. He failed to file it before the Mr. Court and sought relief from this court. As to the lack of which he... Why should we count? It's that kind of end run around a judicial officer. Shouldn't we allow district judges to have the opportunity to make a record in the first instance on issues like this? Well, certainly this court can give Judge Martini that opportunity by remanding it for hearing as to one and three. I think as to A, I don't think that that's an issue that the district judge necessarily would be speaking to because what we've been discussing is the general perception of the public to this kind of a rather unusual situation and how it's perceived by the public. I think that as to the circumstances of the statement being in the congressional record, where he obtained the knowledge about the supposed barrage of bullets, which wasn't accurate, how he knew that that had been... The shot had been fired after the girls said they had no money. All those details are something that Judge Martini could tell us about. But what this court is empowered to decide is how does all this situation perceived by the public? And that's something that I think is more within this court's view, even on plain error review

. We would review that for views of discretion, and we could have well concluded well under 455A, your impartiality might would not have reasonably been questioned. Now, you haven't even given him an opportunity to do all that, and you're asking us to assume plain error that substantially affects your client's rights, when this court has already said that the jurors of reason could not find that your client was entitled to relief from the merits. But just a couple of points, if I may. First of all, my client didn't discover this until the very end of the proceedings. This is something that's not within his... And when he did, he actually opted to do nothing, didn't he? By his own admission, his own written admission. He failed to file it before the Mr. Court and sought relief from this court. As to the lack of which he... Why should we count? It's that kind of end run around a judicial officer. Shouldn't we allow district judges to have the opportunity to make a record in the first instance on issues like this? Well, certainly this court can give Judge Martini that opportunity by remanding it for hearing as to one and three. I think as to A, I don't think that that's an issue that the district judge necessarily would be speaking to because what we've been discussing is the general perception of the public to this kind of a rather unusual situation and how it's perceived by the public. I think that as to the circumstances of the statement being in the congressional record, where he obtained the knowledge about the supposed barrage of bullets, which wasn't accurate, how he knew that that had been... The shot had been fired after the girls said they had no money. All those details are something that Judge Martini could tell us about. But what this court is empowered to decide is how does all this situation perceived by the public? And that's something that I think is more within this court's view, even on plain error review. Certainly Judge Martini could comment on that, but I think that that's an issue that were he to decide that it was irrelevant to the public. But we've already decided though that his constitutional claim was not debatable. How do we get around that? This court has helped his constitutional claims of error in his civil habeuse case are not debatable. Why doesn't that, unfortunately, for your clients slam the door shut on the prejudice aspect of plain error review? Because what you have reviewed in the... this court has reviewed is a tainted opinion. An opinion that resolved the matter, decided on written by a judicial officer who failed the statutory test for disqualification. The CLA is issued based on the opinion that the did that supposedly should have been disqualified judicial officer wrote. So it's building in a layer of logic that doesn't work. You're saying a flawed opinion didn't go in a form? I think that for a green that disagrees. I think this court has said it's not flawed. This court has looked at the merits of that opinion and said it's not flawed opinion. Reasonable jurists could not debate that there was no constitutional violation here. So much so that we're not even going to give you a crack and a pellet review on it. If you could point to something that he wrote in the opinion, if he had made a finding of fact, if there was something in the opinion that he could have slid something into the record and made a finding of fact or done something underhanded that would have poisoned the record that I think I would certainly agree with you. But this was just a legal review. Well, in my view, two of the issues, and I believe this was asked about President Kelsal, two of the issues that he didn't raise in his petition had to do with the instruction of the jury with regard to intent. And whether or not the discharge of the gun was accidental. In terms of the jury instructions that were given years ago at the state trial, the handling of the intent issue, that is, those are actually two of the issues before Judge Martini that just dovetail right into the nature of his comments that he made in his congressional record statement. So an opinion where he says, you know, there's no basis for questioning the state's jury instructions. We may have a fundamental due process that you hear, which is properly in habeas, which really isn't analyzed or addressed at all in his opinion

. Certainly Judge Martini could comment on that, but I think that that's an issue that were he to decide that it was irrelevant to the public. But we've already decided though that his constitutional claim was not debatable. How do we get around that? This court has helped his constitutional claims of error in his civil habeuse case are not debatable. Why doesn't that, unfortunately, for your clients slam the door shut on the prejudice aspect of plain error review? Because what you have reviewed in the... this court has reviewed is a tainted opinion. An opinion that resolved the matter, decided on written by a judicial officer who failed the statutory test for disqualification. The CLA is issued based on the opinion that the did that supposedly should have been disqualified judicial officer wrote. So it's building in a layer of logic that doesn't work. You're saying a flawed opinion didn't go in a form? I think that for a green that disagrees. I think this court has said it's not flawed. This court has looked at the merits of that opinion and said it's not flawed opinion. Reasonable jurists could not debate that there was no constitutional violation here. So much so that we're not even going to give you a crack and a pellet review on it. If you could point to something that he wrote in the opinion, if he had made a finding of fact, if there was something in the opinion that he could have slid something into the record and made a finding of fact or done something underhanded that would have poisoned the record that I think I would certainly agree with you. But this was just a legal review. Well, in my view, two of the issues, and I believe this was asked about President Kelsal, two of the issues that he didn't raise in his petition had to do with the instruction of the jury with regard to intent. And whether or not the discharge of the gun was accidental. In terms of the jury instructions that were given years ago at the state trial, the handling of the intent issue, that is, those are actually two of the issues before Judge Martini that just dovetail right into the nature of his comments that he made in his congressional record statement. So an opinion where he says, you know, there's no basis for questioning the state's jury instructions. We may have a fundamental due process that you hear, which is properly in habeas, which really isn't analyzed or addressed at all in his opinion. The issue regarding whether or not there was a deprivation by virtue of the instruction of the jury, a due process deprivation by virtue of the instruction. That's an issue that he spoke to back in the 90s. Mr. Skitt is a position where, specifically, that of this Court to give a COA on the merits of the case, merely means that we are not in a position hearing the case to affirm the merits of the case. We can't speak to the merits of the case. The only thing we can speak to is the 455. And that the fact that the COA was not granted on the merits means that that's not before us and it's not to be adjudicated. I think that's an absolutely correct statement of the position. For instance, if the COA was granted on the merits, we could say, yes, there was a cloud. I wouldn't say a tain of cloud on the opinion. We have reviewed the merits of the matter and we say we could be adjudicate that even though there was a cloud over the opinion, it is nevertheless a firm on the merits. That's the consequence of the COA not being granted on the merits. That's correct. I think I mentioned that on the foot. No, that my mission here was to address the disqualification. Not the merits at all. I think that Judge Hardman's taking me a little further along that line and saying, well, why didn't we grant a COA on the merits if there were anything there he would have? I don't know if it was right or wrong. I'm just saying that you're asking us to extend this back for a new judge and we've already said by virtue of denial of the COA that no reasonable jurists would find that Miller's constitutional claims were erroneous. But yet we're being asked to send it down to another judicial officer and you're hoping that he'll do precisely what we said. No reasonable jurists could do. And there's something in Congress about that. Because the one jurist who did act on it was in our views that you're totally disqualified

. The issue regarding whether or not there was a deprivation by virtue of the instruction of the jury, a due process deprivation by virtue of the instruction. That's an issue that he spoke to back in the 90s. Mr. Skitt is a position where, specifically, that of this Court to give a COA on the merits of the case, merely means that we are not in a position hearing the case to affirm the merits of the case. We can't speak to the merits of the case. The only thing we can speak to is the 455. And that the fact that the COA was not granted on the merits means that that's not before us and it's not to be adjudicated. I think that's an absolutely correct statement of the position. For instance, if the COA was granted on the merits, we could say, yes, there was a cloud. I wouldn't say a tain of cloud on the opinion. We have reviewed the merits of the matter and we say we could be adjudicate that even though there was a cloud over the opinion, it is nevertheless a firm on the merits. That's the consequence of the COA not being granted on the merits. That's correct. I think I mentioned that on the foot. No, that my mission here was to address the disqualification. Not the merits at all. I think that Judge Hardman's taking me a little further along that line and saying, well, why didn't we grant a COA on the merits if there were anything there he would have? I don't know if it was right or wrong. I'm just saying that you're asking us to extend this back for a new judge and we've already said by virtue of denial of the COA that no reasonable jurists would find that Miller's constitutional claims were erroneous. But yet we're being asked to send it down to another judicial officer and you're hoping that he'll do precisely what we said. No reasonable jurists could do. And there's something in Congress about that. Because the one jurist who did act on it was in our views that you're totally disqualified. And therefore that should take us back. I'm willing to agree that that may be the case. But I think under the standard of review you have a problem because you're asking for another bite of the apple that we've already said is destined to fail. That's my concern. I understand the court's point. However, to the extent that the COA, the decisions by this court on the COA, reflect an analysis of the opinion by the District Court. That's where you're building in this cloud of opinion. I will change my phrase. If I may just address briefly one question. No, you're well beyond your time at this point. Thank you very much. We've got both Council and the beyond a light of it. So we thank you. Council is very much for their hopeful arguments and what is an interesting case and we'll take from that.

Good morning. First matter for argument this morning is Cory Miller, who is the ruling Hill Hendricks and Owl and his givens. Good morning. May please the Court, Mary Gibbons, for Cory Miller. You are on respectfully requested five minutes of the bottle time. That's exactly right. Thank you. Initially, let me start by saying that what is not alleged in this case is any personal animosity by Judge Martini towards Mr. Miller. What is alleged here is only that Judge Martini's position initially as the member of the House of Representatives and his comments regarding a specific case in the House of Representatives gave rise to a situation that under three sections of the statute called for his disqualification to serve as the federal judicial officer in the 20 to 54 proceeding of Bobby Mr. Miller. All of which is to say that when we are ultimately going to be applying with respect to all three subsections is an objective test. Well, what we certainly as to 455A, we are applying an objective test. That's the, I think, somewhat mischaracterized catch-all provision. That actually is the provision that looks towards the perception of impartiality. As to B1 and B3, there are those who are casting mandatory terms in regard to any exact knowledge possessed by the judge or a bias in prejudice as well, but certainly in this case we are emphasizing the issue of knowledge and particularly extra-divisional knowledge. Is there any indication that the time Judge Martini made the determination he was aware that he had, seven or eight years ago, made this statement on the floor of the House of Representatives? Is there any indication that he knew he had done that? Yes, in the record, or only by the other record here. Is there anything that indicates that he knew or that he didn't know? That he, a number of years previously, made a statement concerning this matter. There's no indication in the record either way that he knew or that he did not know. This is not a situation as was presented in, in Wilgerburg, the Supreme Court case where the judge serves the trustee of the hospital and actually didn't know that some proceedings had happened on the board of trustees meeting and then came to that knowledge and eventually revealed it. So what do we do to presume that he knew or that he didn't know or make? No, excuse me, just so I understand the question. No, that he made the statement or no, that there was a connection between his statement and this... That's good, that's good, a denim. Then he knew that eight years ago he had made a statement concerning the petitioner's involvement. Well, I think that in the ordinary course, one would have to... If there's going to be a presumption, one would have to presume that one remembers one's actions. I actually remember when I did the last week, and not because of Alzheimer's, because of that, you know, that's a dangerous thing to start saying eight years ago, I can't begin to tell you what I did. Well, we do presume knowledge in many areas. However, here what you have is not what I hate to characterize as a garden variety crime. This is a crime that was... It's also a garden variety statement, and that was one of my two reasons for asking for a clarification of Judge Cowan's question. Because the nature of some statements, and I'm curious to know what the record reveals about this one, made by members of Congress is that a certain fiction prevails with respect to most of them that are published in the Congressional record, that is to say they never in fact have been delivered on the floor as statements of speeches. The delivery has been a, at one point, in term a manual delivery, now an electronic one to the Congressional record. Is there anything in this record that clarifies whether this was an oral statement or speech given by then Congressman Martini, or whether it was something simply transmitted to and then published in the Congressional record? The only evidence we have is the statement that was submitted in the appendix that is the written transcription of it. It does indicate the date, and it does indicate in the statement itself. This is not something in the nature of just a generic statement. It reads as if it's a transcript. Mr. Martini, Mr. Speaker, I rise today to address the House of Representatives. I practically, practically all of the statements that I'm referring to that appear in the Congressional record, but that have never been delivered under the rules are permitted to be that way, that still no indication that they in fact have been delivered. Let me ask you something more about the statement itself, not simply about whether or not it was delivered personally on the floor by then Congressman Martini. But the statement itself, one, does not indicate in any way the identity of the petitioner here, Mr. Miller, correct? That's correct. In fact, it betrays a certain lack of knowledge of the fact that there had in fact been arrests made of individuals implicated in this crime several days before the statement was even published and or delivered, correct? That's true. However, it, while it does not identify Mr. Miller by name, it certainly identifies Mr. Vlava by name, and the case gained its notoriety not because of Mr. Miller or anything about him personally, but about Mr. Vlava and about her specific characteristics and the specifics of the crime. The additional point that I think it's important to note in regard to the statement, not only is it almost a eulogy to Mr. Vlava, it does indicate in one place a particular familiarity with the circumstances of the crime that were involved in the issues before now Judge Martini, and that is in the second full paragraph where it says she was attacked by a notice, and the Los Angeles who had approached her car and demanded money, when the young woman told her that they did not have any money, one of them had fired shots through the driver's side window. She was struck by the barrage of bullets or best friend in the community where laughter teased. So there seems to be a very detailed familiarity with if nothing else, the very specifics of how her death came about. Perhaps even more telling for your position is not only that the crime is described in some detail, not generic anti-crime speech, but that the crime itself was, I'm from New Jersey myself, with widely published in North Jersey, at the Paris and the area of papers. It was quite a thing, I know, vividly. I do too as well, Your Honor, and as I pointed out in the material that I submitted regarding the subsequent coverage, it continues to be publicized in a way that sadly most crimes are not. There are annual tributes to this victim, she's identified by name, her mother appeared at the, I think the mothers against wilds are knowing in mom, but carrying her picture. So this has been a crime that has stayed very much in the public view, if not statewide, certainly within the area of North Jersey. Does that make any difference under subsection B, or is that really a subsection A attribute for your position? Well, it certainly goes most directly to subsection A, which focuses on the reasonable person's view of impartiality, but to the extent that B1 and B3 are specific examples of the types of conduct behaviors I don't want to make it sound for Jordan, in any way, that give rise to this problem of perception of the judiciary as lacking in fairness, or this particular judge is lacking in fairness. Those are specific examples that Congress has set out, and one of those happens to be the government employee and the expression of opinion by a government employee. Let me stop you right there, because well we're on B, I'd like to look at B1, and just for clarification, ask you what proceeding is contemplated here for purposes of B1 grounds, B1 talks about mandatory disqualification, where he has a personal bias of prejudice concerning the part of your personal knowledge of disputed evidentiary facts concerning the proceeding. Is the relevant knowledge for this provision knowledge regarding the claims that are raised in the habeas petition, where does it go beyond that and then accomplish all of the phases of trial and the kind of post-conviction review? My interpretation of the proceeding language would mean the proceeding that the judicial officer is presiding over such that he or she has some personal knowledge of disputed facts or bias of prejudice. It would be the proceeding, whether it's a habeas proceeding, whether it's any other kind of proceeding that might be before a judicial officer. What about B3's particular case and controversy, which what is the particular case and controversy that you focus on from purposes of your position here? Is it simply the habeas petition? I would say that it would generally be the criminal conviction of Mr. Miller. The habeas proceeding, although it's obviously a separate proceeding in its federal court, is part and parcel of the review process that the Constitution mandates for a state criminal conviction or a force for a state criminal conviction. The habeas proceeding is really not part of the criminal case. It's not even a criminal case, it's a separate case. Why should there be connection between the habeas case and something that is said about a criminal case? Is there a different side of the court? There are different sides of the court, but it's the same case that's seeing both sides of the court. And both courts, the state court, the federal court, the particular case and controversy still to this day remains Mr. Miller's conviction and whether or not that conviction satisfy constitutional requirements. We're not talking about some other case involving Mr. Miller. We're talking about the very same case. But given, well, are we talking about the very same case for the reasons that Judge Collins' question suggests? And if we are not, can we really say, again, for purposes of the language of B3, that the statement here in Constitution A, that the opinion concerning the merits, the merits of what? The habeas or the underlying criminal prosecution? Well, to the extent that the habeas addresses the merits of the underlying criminal prosecution, I think that we are looking at an evolution of the same case because the issues that were before A court initially in the criminal case. The habeas are going to be whether or not the state court made some kind of error of constitutional dimension, you have a federal constitutional dimension. That's correct. And nevertheless, one of the federal judges, the district judges looking at that, is going to be analyzing the very case and controversy that was before the state court. In that interprotect, you know, not really. We do a lot of habeas. With every state conviction is a federal habeas case that the rate we're going here. And in a habeas review, you're merely trying the defendant's petitioner, maybe guilty as hell, you might admit it. And you're just saying that he's guilty, but it was a violation of his constitutional rights, therefore we're going to set it aside. Absolutely. And so it's really not speaking to the merits of the underlying case, you're really speaking to whether or not, as Judge Smith indicated, whether or not it was a constitutional conviction. So we should make it different to the public. Does it make a difference? Under A, it would be the public perception of whether you're sitting on a direct appeal or trying to case itself, or merely reviewing it on a 2255. I think we can all agree that not only most lawyers, but certainly the public do not have another standing of the finer points of habeas law, particularly under a depot. I think that that's a distinction that is completely lost on the public. So it could also include judges in that. But I want to speak only for myself. I very carefully did not do that. I still have a lot of cup of tea. So in terms of public perception, I think that's absolutely a non-issue. In terms of parsing the language of three, I think unless you're speaking about the merits in the most restrictive way possible as being a factual issue involved in the case, that I think that the merits of the case has a generalized meaning that Mr. Miller says, my conviction for this crime should not stand. And that's the merits of the case. Regardless of whether we give it a civil caption or a criminal caption, regardless of the limitation of issues, regardless of how we look at it through a fine legal lens, it's still the case in controversy. Mr. Miller, your time is up and you have reserved five minutes for the but also I think we'll have you back. Thank you very much. Thank you. Mr. Tony. Morning, others. May I please the court, a more telling deputy attorney general on behalf of Warden Hendrix and the attorney general of New Jersey? Mr. Tony, speaking only for myself, this case is not about B-Warner B-2, but A does interest me here and isn't it troubling that we do have a matter that is supported by the record before us. It's attained some significant degree of public visibility at the time and in the wake of the crime and even some beyond as it was more generalized to the problems of crime and victims. Well, the fact is that the notoriety of this case almost makes it less likely for or makes the less reason for Judge Martini to have refused himself. Why Judge Martini contributed to some of the visibility of this case when he was not Judge Martini, but Congress with Martini? Well, that I would dispute. I think Euron's point earlier was well taken with respect to the insertion of items in the congressional record by legislative staff. As a common occurrence, there's no evidence in the record that Judge Martini ever said anything with respect to this. The fact that it was very well publicized in North Jersey as Judge Collins said he remembers the case, but yet there is no basis, of course, to recuse Judge Collins from ruling on this issue. The fact that it was- The statement that Judge Martini submitted or spoke to was actually published in one of the either-Patterson News or one of the papers up there. Was it not? I am not aware of that. And Judge Martini's a district in compasses that area. Judge Martini's district that he served from 1995 to 1997 did encompass Patterson as he stated. I am not aware that his statement was reprinted in the Patterson News. That's not in the record, Euron, I'm sorry. I do want to address 55, 455A. I just would like briefly to point the court to a case that I found that specifically addresses the 455B issue that we were discussing earlier. The case of Russell versus Lane, which is 890F second, 947 from the seventh circuit. It was an opinion by Judge Posner, which I unfortunately did not find in time to put in my briefs. But in that case, the seventh circuit specifically said that 455B3 is not a basis to recuse a disreported judge ruling on a habeas petition when the judge discovered that he had been on the state of palette panel because the habeas petition was not the case in controversy. Or assuming the habeas petition is the case in controversy, the state court proceedings were not. So that I think would be persuasive to this court. The extent that the fact is easily distinguished, of course. Well, in that case, the grounds for recusal were even greater than this case because the judge in Russell versus Lane was actually on the state of palette panel affirming the defendant's convictions. In this case, we have a judge who would then converse many years before, excuse me, seven years before he descended the bench, made a public statement, lamenting the tragic death of a 20-year-old girl who were shot out of Patterson Street corner. What about the passage of time? We just alluded to it again. And what weight should we give to the fact that there is this period of seven to eight years between the offense and the criminal proceedings and the actual habeas ruling that Judge Martini was called upon to me? I think the passage of time weighs in favor of non-recusal. I think that under Section A, the judge would respect only to A, does it implicate either the other two sections or is it, as I am suggesting, really more relevant consideration for A. I think we've only been irrelevant. We've only been a consideration for A. I don't think it has anything to do with whether a judge Martini had personal knowledge of evidentiary facts or whether it was the case in controversy wise. We have the view this from the average lay person in the public, correct? What does the average person in the lay public think when someone makes a high governmental position, makes a statement detailing the actual factual occurrence which resulted from the tragic crime? This is not a general statement about crime. This is about the facts of this crime. And then subsequently, since as a judicial officer, ruling on the bonafidees of the conviction of the petitioner for the crime which he earlier spoke to as being a real tragic affair and illegal act. What would the average person, not someone more trained or just the average person, would they consider that somewhat inappropriate? I don't think that they would consider that inappropriate. I don't think that they would believe that that judge eight years later could be impartial. I don't think that anything that Judge Martini said in his statement whether it was man-hous for or whether it was inserted by his legislative staff was objectionable that anyone in the public, the fact that they did that was not a real is not a real view, is not whether or not we think they would think it was impartial. We have to look at it from the average person and not only in propriety, but we have to view it from the appearance to the public of impropriety even though there was no impropriety. On this record, I have to assume there was no actual impropriety because there's nothing to indicate. He actually knew about this at the time that he ruled on the case. But we look at it as to whether or not there isn't an impropriety or the average person in the public may view it as inappropriate. The appearance of impropriety. Now, what about the average Jando Jando out there? What would they think if a judge ruled on something as a judicial officer which he had earlier spoken to adversely concerning the very crime which he then ruled on? I think the average person in the public would think that any judge who reviewed the record in this case would think it was a tragedy. Excuse me, right? It's stuck right there. He is the something that is stated and contemplated by Judge Cowan's question. That is, the something spoken to, the something that is later ruled upon. Are they one and the same? No, they're not. The something that has been ruled upon by Judge Martini has nothing to do with what he said in 1995 that he said... No, it doesn't. Because what he said was not, we're already in the tragedy of Cindy Wall of his death was certainly not disputed by the defendant in this matter. And the fact that... It's disputed by the defendant that he's guilty of the crime. He claims it was accidental or whatever. And that certainly is not the tenor of the statement made by Judge Martini when he was a congressman. No, that's correct. His statement can be stated in not many words, but whoever did this is a criminal. But the fact is that Judge Martini was making no determination who did this. And nor did he. Well, no, but Judge Cowan's question is absolutely correct, isn't it? When it suggests that Judge Martini, then congressman Martini's statement was talking about the horrendous name of Judge Cowan. The nature of this crime, he wouldn't talk about an accident, which is what Mr. Miller is contending in effect ultimately happened here. That is that the gun discharged accidentally. He was talking about an intentional killing, wasn't he? I think that it could be characterized either way. I mean, because I don't think the Judge, excuse me, I don't think congressman was actually saying that it was an intentional killing. I think he was saying that this girl was dead and that she was trying to kill him. I can't buy that. He's lamenting whoever did this is a criminal. And I think you're barking up the wrong tree when you say that. I think the speech is definitely whoever did this is a criminal. And I think your best argument is that there's no connection between that and his judicial proceeding. At least that's it for me. I don't know about my colleagues. And to that point, you get on your well that, look, this is a habeas proceeding we're reviewing here. This is not a criminal proceeding. What do you have to say about that? Well, that's that. Thank you. That's exactly my point. I'm not going without counsel to you or anyone else here, but I'm just telling you, it's a force I've concerned where the paid dirt lies for you. Well, the fact that this case were not before Judge Martini, whether they were before, whether congressman Martini's recitation of the facts, which I think were admittedly incorrect, there was no barrage of bullets in this case. One month, one month, one month, one month, one month, what did you guys, what the issues were in the habeas proceeding? The issues in the habeas proceeding were whether the account were three ineffective systems of counsel claims, which is me too, regarding whether the trial counsel told him that he could testify at the suppression hearing, whether he, the trial counsel, failed the argument that his convention should have been suppressed, and whether the jury was charged adequately, all of which, as the state court's end of the nineteen eight found, had no merit. And there is no basis in this case for a determination that any of the state court decisions on this matter will contrary to a clearly established federal law. There was no basis for the defendant to be granted habeas for leave. And let me take you back a few minutes to a question I asked you when you were answered, because you didn't really answer it at length or with the specificity I was looking for, and that is the effect that the passage of time should have here. I know you stated agreement with the proposition that it should have an effect and that that effect should be down to the benefit of the state's position here, but you really didn't tell us why, what is there, simply in the temporal passage of eight years, that should somehow dissipate any concern about impartiality, that A is directed to protecting against him. Well, I think it goes directly to the reasonable person standard, whether there was an appearance of partiality. So to the reasonable person, it would matter that this period of time had transpired, why would it matter to the reasonable person? Because I think it's a different situation, a reasonable person who understood that. And what is there in the human experience that would suggest, because we're dealing with something so broad as reasonableness, that would suggest that while this was of considerable interest to then congressman Martini, it should not be of interest to him now, or at least in such a way that it would affect his impartiality. Well, I think that people understand that passions which may have been inflamed at the time of the crime, Wayne over time, they understand that memory, Wayne over time. Oh, okay. So we're seven or eight years out now. Suppose we were five or six years out, would your answer be the same? Yes, what? Suppose we were three or four years out, would your answer be the same? Yes, it would. How about for one or two years out? Then we might have, I mean, one or two years might be different. I'm a very short memory span there, because no matter what your artistic should be used for determining, when it passes into ancient news, yesterday's newspaper, so to speak, and eight years, that's your position. And when do we say it's timely? What standard do we use to measure when that stature limitations runs? Well, Your Honor, I don't think that there can be a bright line rule. I think the standard is what would a reasonable person think. I think clearly eight years is sufficient when you get down two shorter periods of time, that's different case, but that's not the case before. Well, is it just time, though, Ms. Tully? Again, that's part of what my earlier question implied. The reasonable standard for purposes of disqualification or refusal, necessarily contemplates a reasonable person who has knowledge of all the relative facts. Right. I mean, this isn't just some subjective standard. It's an objective standard that assumes that this person has in his cognitive possession, all of the relative facts. What about the relevant facts that at the time the statement was made, it was made by Congressman Martini, and subsequently the contact that is had with this case is by judge-mart. Is there any importer, any weight we should give, not to the mere passage of time, but to the change in responsibilities and interests that Judge Martini now has from when he was a congressman? I think that could also be a fact or yes. Sure. Well, really. Congressman Martini is making this statement from the House as a legislator trying to... You're not conceiving that he made this from the House. No, I'm not. But I would concede that there's no evidence one way or the other, so the fact is it's in the congressional record. Oh, whatever he made it, he signed it and authorized it. Yes. Yes. Does it make a difference that this is habeas and not the underlying criminal effect? This is a petition or not a criminal defendant we have before us? Yes, absolutely. Does the public, the reasonable person in the public make a distinction between a habeas matter concerning an underlying crime and the actual criminal proceeding? The average person reading the newspaper make that distinction? Understand it? Well, probably not. Then why should it make a difference? Well, for some section B, it does. For some section A, it could... Should those be some of the relevant facts that this reasonable person has within his theoretical possession? Yes. The fact that habeas is not perhaps well known by the late person does not mean that they should not be within the realm of facts that the person is in the position. Well, isn't that a pretty fine legal distinction? I think a reasonable person about the fictional reasonable person evaluating this case should take in... If that person were to have all the facts in the possession, we would understand exactly what Judge Martini was supposed to be evaluating in this habeas petition. And that only went to whether the state worked at applied federal law. Let me test that. Suppose this were a criminal habeas petition that he had in district court. Suppose it was the direct appeal eight years later. It happens, unfortunately, on certain matters. Then when you say your position would be the same. Instead of the habeas, it's a criminal matter that he's actually hearing. Well, I guess I'm trying to understand your hypothesis. Now, I'll just ask you. Okay. So if he was a... Well, if he's an intermediate appellate judge such as this panel, where that had made a difference, where your position would be different. No, it wouldn't. It would be different. It would not be different. So it makes... So for you, as far as your concern, it doesn't make any difference whether it's habeas or direct criminal appeal. In both instances, your position is that he's not violating subsection A. Yes. Okay. So we don't have to even deal with the... Your position would be the same even if this were a criminal matter. What if it were direct appeal and a criminal matter and one of the issues on appeal was sufficient to the other. As to whether or not this was an accidental or intentional act. Well, I think that would be a closer case, but I still don't think there would make any difference. The fact is the evidence... I mean, he had no personal knowledge. There's no case... There's no evidence in the record of where he got the knowledge. He'd very well just could have got it from reading the paper as any judge could have done or as anyone who then could have ascended the bench could have done. Don't make it a close-recase at all these days. It's close enough, these days. You know what I'm saying? The... Suppose instead of plain error this had been objected error and judge didn't recuse himself on objection. Would it make any difference to you or would your argument be the same? In other words, there was an objection. Judge, eight years ago you made this statement on the floor. I request that you recuse yourself. Judge, I've made that eight years ago. I was a congressman. You know, I'm a judicial officer now. It's a difficult case. This is a... How about that? Suppose that the objection made he denies it. Would your argument be the same today? My argument would be the same standard. It would be actually stronger because we would have more evidence in the record of what the judge actually did. But you would say... Nevertheless, you would say that it should be affirmed because recusa was not necessary. So it makes no difference to you that this is before it's on plain error rather than objected error. Yeah, correct. Okay, I understand. Thank you. Thank you. Rebut all. Thank you. Please give it. If I may just address a couple of points that Council made. Initially, I think that it's a very different situation when a judicial officer has functioned as a judicial officer in the past, on the same case, even if it's the state appellate court being reviewed. That's a different role and different function. Whether we agree with that authority and that circuit is a different matter, but it's still a different function than what Judge Martini was doing here, which reads terribly close to being a victim's advocate and not a judicial officer of any kind. And that was perfectly appropriate in his role at the time. Ms. Gibbons, I'm sorry to interrupt, but I have a few questions about the standard of review. Before I ask that, a preliminary question. Did Mr. Miller seek a certificate of appealability with respect to the merits of his habeas petition? Yes, he did. And Mr. Court in here. And that was denied. That's correct. All right. You've conceded in your brief that Plain Error applies. That's correct. And in order to win on the Plain Error Standard, you have to show prejudice. You need to show that the error substantially affected your client's rights. That's correct. And is it not resdued a crime based upon the denial of the certificate of appealability that no reasonable jurist could find that your client could win on the merits? And if so, it doesn't that foreclose you from prevailing under the Plain Error Standard? I think that argument has a circularity to it because what the issues are in terms of seeking the certificate of appealability as to the merits, go right back to Judge Martini's opinion. This court certified the appealability on the recuse of disqualification issue only. If this court were to determine that a different judicial officer should handle the matter, then we would have a different opinion, a different outcome possibly, a different result in the district court. And the issues presented on the certificate of appealability would be different before this court, before the district court. So what you're doing is you're taking what I kind of hesitate to say, but is it tainted opinion and saying, well, you couldn't go any further with this tainted opinion. So therefore, the fact that it's tainted doesn't matter. But there's no evidence of taint. You're asking us to assume taint. You're asking us to assume that Judge Martini remembered what Congressman Martini put in the congressional record or said in the congressional record. This court has already said that the reasonable jurors could not find that your client wins on the merits. And it seems to me that the standard of review here and perhaps even worse, even if we find plain error, yes, right? Selkridge says that it must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Where in the record does it show that Judge Martini did anything that would affect the fairness of the proceeding? I don't see anything in the record other than this assumption that you're asking us to make. Well, certainly as to the public perception of the proceedings, I think that that's certainly our strongest argument. But in terms of looking at the resolution of the habeas issues in the district court, what we're saying is that those issues were resolved by a judicial officer who possessed mandatory disqualification factors in his background. Whether he knew it at the time or not. But see, part of my trouble with these cases, if it had gone on direct appeal, or your client had raised it with Judge Martini, we would have a record review. Judge Martini would be able to illuminate to this court what he remembered, what he didn't remember, whether he said it, whether he read it, whether a staff eroded, he would be able to give us some indication of his knowledge about the incident and Mr. Miller, or lack the arouf. By virtue of not having raised it and on direct appeal, and by virtue of having brought it in the habeas petition, you're asking all of those assumptions to go in your client's favor. If those issues, I guess what I'm saying not so harshly is, if the issue had been joined before Judge Martini, Judge Martini could have very well made a record and say, here's what I said, here's what I remember, and here's what I don't remember. We would review that for views of discretion, and we could have well concluded well under 455A, your impartiality might would not have reasonably been questioned. Now, you haven't even given him an opportunity to do all that, and you're asking us to assume plain error that substantially affects your client's rights, when this court has already said that the jurors of reason could not find that your client was entitled to relief from the merits. But just a couple of points, if I may. First of all, my client didn't discover this until the very end of the proceedings. This is something that's not within his... And when he did, he actually opted to do nothing, didn't he? By his own admission, his own written admission. He failed to file it before the Mr. Court and sought relief from this court. As to the lack of which he... Why should we count? It's that kind of end run around a judicial officer. Shouldn't we allow district judges to have the opportunity to make a record in the first instance on issues like this? Well, certainly this court can give Judge Martini that opportunity by remanding it for hearing as to one and three. I think as to A, I don't think that that's an issue that the district judge necessarily would be speaking to because what we've been discussing is the general perception of the public to this kind of a rather unusual situation and how it's perceived by the public. I think that as to the circumstances of the statement being in the congressional record, where he obtained the knowledge about the supposed barrage of bullets, which wasn't accurate, how he knew that that had been... The shot had been fired after the girls said they had no money. All those details are something that Judge Martini could tell us about. But what this court is empowered to decide is how does all this situation perceived by the public? And that's something that I think is more within this court's view, even on plain error review. Certainly Judge Martini could comment on that, but I think that that's an issue that were he to decide that it was irrelevant to the public. But we've already decided though that his constitutional claim was not debatable. How do we get around that? This court has helped his constitutional claims of error in his civil habeuse case are not debatable. Why doesn't that, unfortunately, for your clients slam the door shut on the prejudice aspect of plain error review? Because what you have reviewed in the... this court has reviewed is a tainted opinion. An opinion that resolved the matter, decided on written by a judicial officer who failed the statutory test for disqualification. The CLA is issued based on the opinion that the did that supposedly should have been disqualified judicial officer wrote. So it's building in a layer of logic that doesn't work. You're saying a flawed opinion didn't go in a form? I think that for a green that disagrees. I think this court has said it's not flawed. This court has looked at the merits of that opinion and said it's not flawed opinion. Reasonable jurists could not debate that there was no constitutional violation here. So much so that we're not even going to give you a crack and a pellet review on it. If you could point to something that he wrote in the opinion, if he had made a finding of fact, if there was something in the opinion that he could have slid something into the record and made a finding of fact or done something underhanded that would have poisoned the record that I think I would certainly agree with you. But this was just a legal review. Well, in my view, two of the issues, and I believe this was asked about President Kelsal, two of the issues that he didn't raise in his petition had to do with the instruction of the jury with regard to intent. And whether or not the discharge of the gun was accidental. In terms of the jury instructions that were given years ago at the state trial, the handling of the intent issue, that is, those are actually two of the issues before Judge Martini that just dovetail right into the nature of his comments that he made in his congressional record statement. So an opinion where he says, you know, there's no basis for questioning the state's jury instructions. We may have a fundamental due process that you hear, which is properly in habeas, which really isn't analyzed or addressed at all in his opinion. The issue regarding whether or not there was a deprivation by virtue of the instruction of the jury, a due process deprivation by virtue of the instruction. That's an issue that he spoke to back in the 90s. Mr. Skitt is a position where, specifically, that of this Court to give a COA on the merits of the case, merely means that we are not in a position hearing the case to affirm the merits of the case. We can't speak to the merits of the case. The only thing we can speak to is the 455. And that the fact that the COA was not granted on the merits means that that's not before us and it's not to be adjudicated. I think that's an absolutely correct statement of the position. For instance, if the COA was granted on the merits, we could say, yes, there was a cloud. I wouldn't say a tain of cloud on the opinion. We have reviewed the merits of the matter and we say we could be adjudicate that even though there was a cloud over the opinion, it is nevertheless a firm on the merits. That's the consequence of the COA not being granted on the merits. That's correct. I think I mentioned that on the foot. No, that my mission here was to address the disqualification. Not the merits at all. I think that Judge Hardman's taking me a little further along that line and saying, well, why didn't we grant a COA on the merits if there were anything there he would have? I don't know if it was right or wrong. I'm just saying that you're asking us to extend this back for a new judge and we've already said by virtue of denial of the COA that no reasonable jurists would find that Miller's constitutional claims were erroneous. But yet we're being asked to send it down to another judicial officer and you're hoping that he'll do precisely what we said. No reasonable jurists could do. And there's something in Congress about that. Because the one jurist who did act on it was in our views that you're totally disqualified. And therefore that should take us back. I'm willing to agree that that may be the case. But I think under the standard of review you have a problem because you're asking for another bite of the apple that we've already said is destined to fail. That's my concern. I understand the court's point. However, to the extent that the COA, the decisions by this court on the COA, reflect an analysis of the opinion by the District Court. That's where you're building in this cloud of opinion. I will change my phrase. If I may just address briefly one question. No, you're well beyond your time at this point. Thank you very much. We've got both Council and the beyond a light of it. So we thank you. Council is very much for their hopeful arguments and what is an interesting case and we'll take from that