Recusal Not Required When a Federal Judge’s Prior State-Appellate Role Involved Only a Non-Merits Discretionary-Review Denial

Introduction

In Waseem Daker v. Sheriff, Cobb County (11th Cir. Jan. 16, 2026) (per curiam) (not for publication), the Eleventh Circuit addressed whether a federal district judge (Judge William Ray II) was required to recuse himself from a federal habeas proceeding under 28 U.S.C. § 2254 based on the judge’s prior service on the Georgia Court of Appeals.

The underlying federal habeas petition was dismissed without prejudice for lack of exhaustion, and the Eleventh Circuit denied a certificate of appealability as to that dismissal. The only issue properly before the court was the denial of Daker’s motion to recuse Judge Ray—an issue the Eleventh Circuit held did not require a certificate of appealability.

Daker’s recusal theory had two prongs: (1) Judge Ray had been a member of the Georgia Court of Appeals when that court denied discretionary review of Daker’s appeal from the denial of a mandamus petition (seeking to compel a clerk to schedule a state habeas hearing); and (2) Judge Ray allegedly demonstrated bias against Daker through prior decisions and statements.

Summary of the Opinion

The Eleventh Circuit affirmed the denial of recusal. It held:

28 U.S.C. § 47 did not apply because Judge Ray was not “hear[ing] or determin[ing] an appeal” from a case or issue “tried by him.”
28 U.S.C. § 455(a) did not require recusal because an informed, reasonable observer would not harbor significant doubt about impartiality where the judge’s prior state-appellate connection was merely membership on the court at the time of a discretionary-review denial, with no showing he sat on the panel and no merits decision rendered.
Claims of bias based on adverse rulings failed under Liteky v. United States and Eleventh Circuit precedent requiring something more than judicial rulings absent pervasive bias.

Analysis

Precedents Cited

Standard of review and core recusal framework

Thomas v. Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002): supplied the governing abuse-of-discretion standard for reviewing a recusal decision. This framing matters because it gives substantial deference to the district court’s application of the recusal statutes unless the decision falls outside a range of reasonable choices.
In re Moody, 755 F.3d 891 (11th Cir. 2014): provided the Eleventh Circuit’s articulation of the § 455(a) objective test—whether an “objective, disinterested, lay observer fully informed of the facts” would entertain “a significant doubt” about impartiality. The panel used this lens to evaluate Daker’s claim based on Judge Ray’s prior state-appellate service.
United States v. Ramos, 933 F.2d 968 (11th Cir. 1991): reinforced the general rule that disqualifying bias ordinarily must be rooted in extrajudicial sources and be focused against a party. This principle narrowed Daker’s ability to rely on judicial acts as proof of bias.

Statutory inapplicability of 28 U.S.C. § 47

United States v. Garramone, 374 F. Supp. 256 (E.D. Pa. 1974): used as an analogy to explain what § 47 covers and, equally important, what it does not cover. The Eleventh Circuit relied on the idea that “appeal” in § 47 refers to review of a final order by a higher court, and that not every prior judicial act (especially not something like authorizing surveillance in Garramone) constitutes a “case or issue tried by” the same judge. Here, Judge Ray did not “try” Daker’s case as a state judge and was not hearing an “appeal” from a trial he conducted.

Out-of-circuit habeas-recusal cases distinguished

Clemmons v. Wolfe, 377 F.3d 322 (3d Cir. 2004); Rice v. McKenzie, 581 F.2d 114 (4th Cir. 1978); Weddington v. Zatecky, 721 F.3d 456 (7th Cir. 2013): These cases stand for the proposition (in various formulations) that a federal judge should not adjudicate a federal habeas matter closely tied to state criminal proceedings over which the judge previously presided as a state judge. The Eleventh Circuit deemed them inapplicable because Judge Ray did not preside over Daker’s criminal trial (or otherwise act as the judge who handled the merits of the underlying conviction).

The persuasive “non-merits discretionary-review” analogy adopted

Tyler v. Puckett, 413 F.3d 696 (8th Cir. 2005): the panel treated Tyler as the “most analogous” authority. In Tyler, the judge’s prior vote on a state-court motion to transfer an appeal was not enough to create reasonable doubt about impartiality because it did not involve an opinion on the merits of the case. The Eleventh Circuit found the same logic applicable where the prior state-court connection was a denial of discretionary review—particularly with no showing that Judge Ray was on the panel and where denial of discretionary review necessarily entailed no merits adjudication.
Johnson v. Steele, 999 F.3d 584 (8th Cir. 2021): cited to reinforce Tyler’s rationale. Johnson held that mere access to filings or temporal overlap with a state appellate court did not necessitate recusal when the judge did not participate in consideration or merits disposition. The Eleventh Circuit used this to bolster the view that attenuated, non-participatory, or non-merits state-appellate involvement does not reasonably undermine impartiality.

Judicial rulings as an insufficient basis for bias

Liteky v. United States, 510 U.S. 540 (1994): supplied the bedrock rule that “judicial rulings alone almost never constitute a valid basis” for claims of bias or partiality. The panel used Liteky to reject Daker’s attempt to infer bias from Judge Ray’s adverse decisions.
Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000): applied Liteky within the circuit by holding that, absent “pervasive bias,” rulings in the same or a related case are insufficient for recusal. The Eleventh Circuit concluded that Daker failed to show pervasive bias on the record.

Ancillary procedural citations (scope and waiver)

Christo v. Padgett, 223 F.3d 1324 (11th Cir. 2000): referenced for the standard under 28 U.S.C. § 144 (affidavit-based bias motions). The court noted Daker did not rely on § 144 in his brief, and therefore it did not analyze that statute further.
Campbell v. Air Jam. Ltd., 760 F.3d 1165 (11th Cir. 2014): cited for the principle that liberal construction of pro se filings does not permit the court to act as de facto counsel; supporting the court’s decision not to develop a § 144 argument on Daker’s behalf.

Legal Reasoning

§ 47 does not extend to the posture presented. The court read § 47’s “appeal from the decision of a case or issue tried by him” as targeting classic vertical review of a matter previously tried by the same judge. Because Judge Ray did not “try” Daker’s criminal case and the federal habeas matter was not an “appeal” from a case he tried, § 47 was a mismatch.
§ 455(a) is assessed from the viewpoint of an informed reasonable observer. Applying In re Moody, the court focused on what the prior state-appellate connection actually signified. The Georgia Court of Appeals’ denial of discretionary review did not entail a merits ruling; the opinion further emphasized there was no indication Judge Ray sat on the panel that denied review.
Non-merits discretionary-review activity does not reasonably suggest prejudgment of the federal habeas claims. By analogizing to Tyler v. Puckett, the court treated discretionary gatekeeping decisions as different in kind from merits adjudications. A reasonable observer would not infer partiality merely from the judge’s prior association with a court that declined discretionary review, particularly where the federal case concerns different legal questions and the earlier action did not require endorsing (or rejecting) the merits.
Adverse rulings and litigation friction are not enough. Invoking Liteky and Bolin, the court rejected Daker’s “prior decisions and statements” theory to the extent it relied on adverse rulings. Without record evidence of “pervasive bias” or an extrajudicial source of animus, the recusal request could not succeed.

Impact

Although unpublished, the opinion is practically significant in three recurring contexts:

Habeas administration in jurisdictions with overlapping judicial careers: it signals that a district judge’s prior service on a state appellate court—standing alone—does not trigger recusal where the earlier involvement was limited to a non-merits discretionary-review posture.
Constraining strategic recusal motions: the decision reinforces that litigants cannot convert unfavorable judicial rulings into a recusal entitlement absent evidence meeting the demanding standards of § 455 and Liteky.
Clarifying “appearance” analysis: by adopting Tyler’s logic, the court draws a workable line: prior merits adjudication of the same criminal matter is materially different from procedural gatekeeping or a court’s discretionary refusal to review.

Complex Concepts Simplified

Discretionary review: a higher court’s choice whether to take a case. A denial often means only “we will not hear it,” not “we agree with the lower court.”
Recusal under § 455(a): focuses on appearances—whether an informed reasonable person would significantly doubt impartiality—not on whether the judge is actually biased.
Extrajudicial source doctrine: bias generally must come from outside the judge’s work in court (personal dealings, outside statements, etc.). Judicial rulings usually don’t count.
“Pervasive bias” (from Bolin v. Story): an exceptional pattern of hostility or favoritism, beyond ordinary adverse rulings, that would convince an objective observer the judge cannot be fair.
28 U.S.C. § 47: a narrow rule preventing a judge from sitting in appellate review of a matter the judge previously “tried”—aimed at direct self-review, not at remote or procedural prior involvement.

Conclusion

The Eleventh Circuit’s decision establishes (at least persuasively within the circuit’s recusal jurisprudence) that a federal judge’s prior membership on a state appellate court at the time it denied discretionary review—without a merits ruling and without a showing the judge participated—does not, by itself, create an appearance of partiality requiring recusal under § 455(a). The opinion also reiterates the high bar for bias claims grounded in judicial rulings under Liteky v. United States and Bolin v. Story, and it confirms the limited reach of 28 U.S.C. § 47 to situations involving appellate review of matters the judge previously tried.