Kevin Johnson v. Troy Steele

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2513
___________________________
Kevin Johnson
lllllllllllllllllllllPetitioner - Appellant
v.
Troy Steele
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: December 17, 2020
Filed: June 1, 2021
____________
Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
____________
SMITH, Chief Judge.
Kevin Johnson appeals the district court’s1 order denying his motion to recuse
in his habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254. He also asks
1The Honorable Stephen N. Limbaugh, Jr. United States District Judge for the
Eastern District of Missouri.

-- 1 of 8 --

this court to issue a certificate of appealability (COA) on three of his habeas corpus
claims. We affirm the district court’s denial of the motion to recuse and also deny
Johnson’s application for a COA.
I. Background
A jury found Johnson guilty of first-degree murder for killing a Kirkwood,
Missouri police officer. State v. Johnson, 284 S.W.3d 561, 567 (Mo. 2009) (en banc).
Following the jury’s recommendation, the state trial court sentenced Johnson to death.
Id. The Missouri Supreme Court affirmed the conviction and sentence on direct
appeal. Id. It later affirmed the denial of state post-conviction relief. Johnson v. State,
406 S.W.3d 892, 897 (Mo. 2013) (en banc).
Johnson filed this federal habeas petition, raising 26 claims for relief. Johnson
moved to recuse United States District Judge Stephen N. Limbaugh, Jr. Specifically,
Johnson’s motion alleged two grounds: (1) Judge Limbaugh was a member of the
Missouri Supreme Court when Johnson first filed his notice of direct appeal to that
court, and (2) Judge Limbaugh, while on the state appellate court, authored certain
dissenting opinions in other Missouri death penalty cases, the “tone, tenor, and
content” of which brought into question Judge Limbaugh’s impartiality in Johnson’s
case. Pet’r’s Mot. for Recusal at 4, Johnson v. Steele, No. 4:13-cv-02046-SNLJ (E.D.
Mo. 2017), ECF No. 120.
Judge Limbaugh denied the motion to recuse. As to the first issue, Judge
Limbaugh noted that he “did not participate in any substantive decision in this case
while it was pending before the Supreme Court of Missouri,” “was wholly unaware
that the appeal had been filed, and . . . did not review any records whatsoever
connected with the case.” Mem. & Order at 2, Johnson v. Steele, No. 4:13-cv-02046-
SNLJ (E.D. Mo. 2017), ECF No.135. Furthermore, “by the time [he] left the Court on
July 31, 2008, neither briefing nor argument had taken place, much less a decision
rendered.” Id. Judge Limbaugh confirmed he “did not participate in the case in any
-2-

-- 2 of 8 --

respect”; as a result, he concluded that his “presence on the Supreme Court at the start
of the case [was] no ground to question [his] impartiality.” Id.
Johnson next questioned Judge Limbaugh’s impartiality based on his prior
dissenting opinions in other Missouri death penalty cases. See State v. McFadden
(McFadden II), 216 S.W.3d 673 (Mo. 2007) (en banc) (Limbaugh, J., concurring in
part and dissenting in part); State v. McFadden (McFadden I), 191 S.W.3d 648 (Mo.
2006) (en banc) (Limbaugh, J., dissenting). Judge Limbaugh cited “the general rule
. . . that ‘judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.’” Mem. & Order at 2 (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). Nonetheless, Johnson argued that the prior cases were “related” to his
case because they concerned the same “issue”: “the St. Louis County Prosecutor’s
Office has systematically committed Batson[2] violations by excluding black citizens
during jury selection.” Mem. & Order at 3. In McFadden I and McFadden II, Judge
Limbaugh “determined that the facts and the law did not establish that Batson
violations were committed.” Id. He explained that his “disagreement with the majority
in those cases did not reflect any ill-will or antagonism towards the defendant or to
the propriety of Batson claims generally, nor any favoritism to the St. Louis County
Prosecutor’s Office.” Id. Judge Limbaugh made clear that he would “again apply the
law to the facts [in the present case], considering them anew, and with the utmost
impartiality.” Id. He found “no valid ground for recusal.” Id.
Subsequently, the district court denied Johnson’s petition for writ of habeas
corpus. Thereafter, Johnson applied for a COA on the court’s adjudication of seven
claims. The district court denied the application for a COA.
2Batson v. Kentucky, 476 U.S. 79 (1986).
-3-

-- 3 of 8 --

II. Discussion
Johnson appeals the district court’s denial of his motion to recuse. He also
applied for a COA with this court. An administrative panel of this court denied the
motion. He now asks the merits panel of this court to reconsider the denial of the
application for a COA.
A. Recusal
Johnson argues that the district court abused its discretion by refusing to
disqualify itself for two reasons: (1) Judge Limbaugh’s presence on the Missouri
Supreme Court during the early pendency of Johnson’s direct appeal, and (2) Judge
Limbaugh’s McFadden dissents prejudged issues in Johnson’s case.
A judge must “disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). To make this determination, we
apply an objective standard that asks whether all the attendant circumstances would
raise doubt in the mind of an average person about the judge’s impartiality. Tyler v.
Purkett, 413 F.3d 696, 704 (8th Cir. 2005). “A party introducing a motion to recuse
carries a heavy burden of proof; a judge is presumed to be impartial and the party
seeking disqualification bears the substantial burden of proving otherwise.” United
States v. Delorme, 964 F.3d 678, 681 (8th Cir. 2020) (quoting United States v. Oaks,
606 F.3d 530, 537 (8th Cir. 2010)). We review for an abuse of discretion a judge’s
denial of a motion to recuse. Id. at 680.
1. Tenure on the Missouri Supreme Court
“[I]t is considered improper—indeed is an express ground for recusal, see 28
U.S.C. § 47—in modern American law for a judge to sit on the appeal from his own
case.” Russell v. Lane, 890 F.2d 947, 948 (7th Cir. 1989). “The same principle is
involved . . . . in federal habeas corpus cases [because] the federal district judges do
sit in review of the proceedings in the state courts. . . . In no substantive sense can
that process be readily distinguished . . . from appellate review of decisions of trial
-4-

-- 4 of 8 --

courts.” Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir. 1978). When a federal
district judge conducts habeas review of state convictions under 28 U.S.C. § 2254,
“the district court judge . . . [acts] in the capacity of an appellate court.” U.S. ex rel.
Britz v. Thieret, 737 F. Supp. 59, 61 (C.D. Ill. 1990). “[If] the judge had previously
ruled on the issues while on the state bench[,] then the circumstances would call for
the judge to hear an appeal of his own decision . . . .” Id. Put another way, “the judge
would be required ‘to find that he had affirmed an unconstitutional conviction, and,
implicitly, that by doing so he had become complicit in sending [the petitioner] to
prison in violation of [the petitioner’s] constitutional rights.’” Id. (alterations in
original) (quoting Russell, 890 F.2d at 948).
We have held that a district judge conducting habeas review was not required
to recuse himself because he had been a member of the Missouri Court of Appeals at
the time that the petitioner had moved for rehearing or transfer of his state court
appeal to the Missouri Supreme Court. Tyler v. Purkett, 413 F.3d 696, 704–05 (8th
Cir. 2005). Under Missouri Supreme Court Rules, a decision to transfer a case from
the Missouri Court of Appeals to the Missouri Supreme Court was based on whether
the voting judges believed “the general interest or importance of a question involved
in the case or for the purpose of reexamining existing law” required the transfer. Id.
at 704. We assumed that all members of court “ruled on [the petitioner’s] motion.”
Id. But we concluded that the federal district judge’s vote on the transfer motion
would not cause a reasonable person “to question a jurist’s impartiality as to the
merits of the case.” Id. at 705. As a result, we held that recusal was not required. Id.
Johnson concedes that Judge Limbaugh left the Missouri Supreme Court before
Johnson’s case was briefed, argued, or decided. When ruling on Johnson’s habeas
petition, Judge Limbaugh never had to review any of his past state court rulings.
Instead, like the district judge’s vote on the transfer motion in Tyler, Judge
Limbaugh’s mere access to legal filings in Johnson’s case prior to his departure from
-5-

-- 5 of 8 --

the Missouri Supreme Court never impacted the merits of Johnson’s case. Judge
Limbaugh left the court before briefing, oral argument, or a decision was rendered.
On these facts, a knowledgeable, reasonable person would not question Judge
Limbaugh’s impartiality as he took no part in the consideration of Johnson’s state
appeal.
2. McFadden Dissents
Second, Johnson argues that Judge Limbaugh’s prior dissents in an unrelated
case while a member of the Missouri Supreme Court required his recusal from
Johnson’s federal habeas case. Then-Justice Limbaugh authored dissents in
McFadden I and McFadden II. In these dissents, he disagreed with the majority
opinions, which held that the State violated Batson. See McFadden I, 191 S.W.3d at
658–62; McFadden II, 216 S.W.3d at 679–84. According to Johnson, these dissents
show that Judge Limbaugh prejudged issues in Johnson’s case because Johnson
raised a Batson claim and was convicted in St. Louis County—the same jurisdiction
the McFadden cases arose from.
The Supreme Court has made clear that
judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. In and of themselves (i.e., apart from surrounding
comments or accompanying opinion), they cannot possibly show
reliance upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or antagonism required
. . . when no extrajudicial source is involved. Almost invariably, they are
proper grounds for appeal, not for recusal.
Liteky, 510 U.S. at 555 (citation omitted).
“[U]nfavorable judicial ruling[s]” are not sufficient “to require disqualification
absent a showing of ‘pervasive personal bias and prejudice . . . .” Holloway v. United
-6-

-- 6 of 8 --

States, 960 F.2d 1348, 1351 (8th Cir. 1992) (quoting Davis v. Comm’r, 734 F.2d
1302, 1303 (8th Cir. 1984) (per curiam)).
Having reviewed Judge Limbaugh’s dissents in McFadden I and McFadden II,
we find no evidence of “pervasive personal bias and prejudice” against Johnson. See
id. Instead, these dissents reflect Judge Limbaugh’s consideration of the specific facts
and circumstances before him in the McFadden cases. See McFadden II, 216 S.W.3d
at 684 (“Under the totality of the circumstances, I am quite unwilling to convict the
prosecutor and the judge of racial prejudice, and I would hold that the trial court's
denial of the Batson challenge was not clearly erroneous.” (emphasis added));
McFadden I, 191 S.W.3d at 659–60 (recognizing that the Batson analysis must be
done under the totality-of-circumstances test).
Accordingly, we affirm the district court’s denial of Johnson’s motion to
recuse.
B. COA
Johnson also asks this court to grant his application for a COA and reverse the
district court’s adverse judgment and rulings on three of his claims for habeas relief.
He concedes that “an administrative panel of this Court” “denied a certificate of
appealability.” Appellant’s Br. at 8. Nevertheless, he contends that “[i]t is
well-established that a merits panel has authority to grant a COA.” Id. at 20.
Having reviewed Johnson’s application for a COA, we decline to disturb the
administrative panel’s denial of the application for a COA. Accordingly, we again
deny the application for a COA.3
3Because we again deny Johnson’s application for a COA, we need not address
the government’s argument that we lack authority to reconsider Johnson’s application
for a COA.
-7-

-- 7 of 8 --

III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________
-8-

-- 8 of 8 --