NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 16-2243
                                    ____________

                                   TITO RIVERA,
                                        Appellant

                                          v.

                    SUPERINTENDENT HOUTZDALE SCI;
                     THE ATTORNEY GENERAL OF THE
                        STATE OF PENNSYLVANIA;
                     SUPERINTENDENT KEN CAMERON;
             THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY
                              ____________

                    On Appeal from United States District Court
                      for the Western District of Pennsylvania
                           (W. D. Pa. No. 2-13-cv-01394)
                    Magistrate Judge: Honorable Cynthia R. Eddy
                                   ____________

                         Argued December 11, 2017
          Before: RESTREPO, GREENBERG and FISHER, Circuit Judges.

                                (Filed: June 19, 2018)

R. Damien Schorr, Esq. ARGUED
1015 Irwin Drive
Pittsburgh, PA 15236

Rusheen R. Pettit, Esq. ARGUED
Allegheny County Office of District Attorney
436 Grant Street
Pittsburgh, PA 15219
                                       ____________

                                         OPINION 1
                                       ____________

FISHER, Circuit Judge.

       Tito Rivera, a prisoner of the Commonwealth of Pennsylvania, seeks federal

habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2254. Rivera claims that his due process rights were violated by the inappropriate pre-

trial transfer of his case to a new, allegedly harsher judge.

       Rivera was convicted of rape and several other violent offenses. After his direct

appeal concluded and his sentence was affirmed, Rivera learned, through an article

published by the Pittsburgh Post-Gazette, that a court employee sent an e-mail to a court

administrator that appeared to ask for the reassignment of Rivera’s case to a different

judge. That court employee was the uncle of one of the victims. The case was later

reassigned to Judge McDaniel, who presided over the jury trial and imposed the sentence.

       Rivera presents two issues on appeal from the District Court’s denial of his habeas

application: whether the case transfer violated his due process rights, and whether the

District Court abused its discretion by declining to conduct an evidentiary hearing on his

due process claim. We conclude that the District Court abused its discretion by declining

to conduct an evidentiary hearing on Rivera’s due process claim and remand for a hearing


       1
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                              2
to be held. We will therefore not reach the question of whether Rivera’s due process

rights were violated.

                                             I.

       A. Factual History

       In 2007, Rivera approached two male college students outside of their house in the

Oakland neighborhood of Pittsburgh, eventually drawing a gun (later determined to be a

BB gun that looked convincingly like the real thing). Rivera forced the students into their

house. The students’ three housemates were also present inside the house, as was one of

their girlfriends. Rivera threatened to kill all of them and demanded money. After taking

their money, he forced the woman into the adjoining bathroom and raped her. Returning

to the room where the men were, Rivera ordered them to pack up other visible valuables

and to prepare to go to a nearby ATM to withdraw more money. Realizing that Rivera

was no longer holding a gun, one of the men jumped on him. The others helped to

restrain Rivera while the woman ran out of the house and summoned the police.

       Rivera was charged with Rape, Involuntary Deviate Sexual Intercourse, Indecent

Assault, Simple Assault, Burglary, and six counts of Robbery and Terroristic Threats.

Judge McDaniel presided over the trial in the Allegheny County Court of Common Pleas.

Before the beginning of trial, Judge McDaniel made the following statement on the

record: “I have spoken to both counsel and told them that the alleged victim in this case is

a relative of George Matta, who was Clerk of Courts who I worked with. They both said

they saw no conflict nor do I feel any prejudice.” Appellant’s Br. at 16. Matta was the

                                             3
uncle of the rape victim, and served as Clerk of Courts until a few months before the

beginning of the trial. A jury found Rivera guilty of all charges except Simple Assault.

       Judge McDaniel sentenced Rivera to an aggregate term of 80–160 years. He filed

a direct appeal to the Pennsylvania Superior Court, which affirmed. Four days after his

direct appeal concluded, the Pittsburgh Post-Gazette published an article describing an e-

mail from Matta, then serving as the Clerk of Courts, to Helen Lynch, the criminal court

administrator responsible for case assignments. This e-mail was sent ten days before

Matta’s position as Clerk of Courts would be eliminated, three weeks before the trial was

originally scheduled, and five months before the trial actually began. The record does not

contain the full contents of the e-mail, only the portion quoted by the Post-Gazette. The

portion of the article containing e-mail excerpts reads as follows:

       “Helen, Happy New Year. I looked up my [relative’s trial] and it is set for
       Jan. 23, [2008] with Judge Sasinoski. I thought it was going to be heard
       by Donna Jo . . . .”
       Mr. Matta noted that his relative was abroad at the time. “She will not be
       back till the next week. Can you have this changed?”
       The note concluded with: “Thanks and I appreciate all your and the
       Judge’s good words and friendship. I truly will miss working with you
       guys and am hoping that we will at least do lunch every so often.”

App. 28 (alterations in original) (“Donna Jo” referring to Judge Donna Jo McDaniel). At

the time of Rivera’s trial, Judge McDaniel handled the majority of sexual assault and rape

cases while Judge Sasinoski handled the majority of drunk driving cases.




                                             4
       B.     Procedural History

       Rivera filed a pro se petition for relief pursuant to Pennsylvania’s Post Conviction

Relief Act (PCRA) in 2011. His appointed attorney filed a “No Merit” letter and moved

to withdraw as counsel. The PCRA court dismissed the petition without an evidentiary

hearing. Rivera filed an appeal to the Pennsylvania Superior Court, claiming four grounds

for relief including the violation of his rights under the Pennsylvania and United States

Constitutions due to the inappropriate reassignment of his case. The Superior Court

affirmed the dismissal of the PCRA petition. It identified Rivera’s due process claim as

“his case [being] inappropriately reassigned to the trial court by the clerk of courts, a

relative of one of [Rivera’s] victims.” Commonwealth v. Rivera, No. 310 WDA 2012,

, at *6 (Pa. Super. Ct. Jan. 28, 2013). The Superior Court rejected his

claim, holding that “to the extent Appellant claims trial court error, because Appellant

could have raised this claim on direct appeal, it is waived under the PCRA.” 

Court further held that “any claim of trial counsel’s ineffectiveness for failing to

object to the reassignment is meritless” because Rivera failed to show prejudice. 

Supreme Court denied further review.

       Rivera filed a pro se petition for a writ of habeas corpus in the District Court,

raising five claims. All five were denied, but only one is relevant to this appeal: Rivera’s

claim that his constitutional rights were violated when his case was reassigned to Judge

McDaniel after being initially assigned to Judge Sasinoski. The District Court

erroneously considered only the standard for ineffective assistance of counsel, not the

                                              5
underlying due process claim, when it determined that the state court’s ruling was not an

unreasonable application of law or determination of facts.

       We granted a certificate of appealability as to Rivera’s claim “that his due process

rights were violated when his case was transferred by a court employee, who was a

relative of the victim, to the employee’s preferred judge” and “that there was a[n]

unconstitutional potential for bias when the court employee used his position to obtain

what he believed was a more favorable outcome with the judge who presided over

Rivera’s trial, sentencing, and post-conviction proceedings.” App. 24. The certificate of

appealability also included “whether the District Court should have conducted an

evidentiary hearing on Rivera’s due process claim.” App. 25. The certificate directed the

parties to address waiver and procedural default. The Government concedes that there

was no procedural default, and we agree.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. This Court

has jurisdiction over this appeal under 28 U.S.C. §§ 1291 and 2253.

       The District Court’s decision to grant or deny an evidentiary hearing is reviewed

for abuse of discretion. Morris v. Beard, 

, 193 (3d Cir. 2011). “Because the

District Court did not conduct an evidentiary hearing and engaged in no independent fact

finding, we apply de novo review to its factual inferences drawn from the state court

record and its legal conclusions, including the grant of habeas relief.” Mathias v.

Superintendent Frackville SCI, 

, 475 (3d Cir. 2017), cert. denied 

1509846 (Apr. 30, 2018). We therefore apply “the same standard [of review] that the

District Court was required to apply.” Lewis v. Horn, 

, 100 (3d Cir. 2009)

(quoting Thomas v. Horn, 

, 113 (3d Cir. 2009)). To determine what standard

the District Court should have applied, we must consider the state court decision.

       AEDPA restricts federal court review where the state court has adjudicated a claim

on the merits. 28 U.S.C. § 2254(d) (relief shall not be granted unless the state court

decision on the merits “was contrary to, or involved an unreasonable application of,

clearly established Federal law” or “resulted in a decision that was based on an

unreasonable determination of the facts”). Rivera’s claim was not decided on the merits

in state court. Rather, the Superior Court denied his due process claim as “waived under

the PCRA” because he “could have raised this claim on direct appeal.” Rivera, 

, at *6. The government concedes that Rivera’s due process claim is not waived

or procedurally defaulted by his failure to raise it on direct appeal because he did not

learn of Matta’s e-mail until the publication of the Post-Gazette article, which was after

Rivera’s direct appeal concluded. Appellee’s Br. at 24. The Superior Court’s additional

analysis treated the claim as an ineffective assistance of counsel claim. Because the

Superior Court ended Rivera’s state appeal with a decision that was not on the merits,

AEDPA does not require the deferential review of 28 U.S.C. § 2254(d). 

. We therefore review his legal claim de novo. 

       Rivera claims that he is entitled to habeas relief because his due process right to an

unbiased trial was violated and argues that the District Court abused its discretion when it

declined to hold an evidentiary hearing. We agree that the District Court should have held

a hearing. Because we will remand for a hearing, we will not now reach the question of

whether Rivera’s due process rights were in fact violated by Matta’s e-mail about the

judicial assignment.

       A. Evidentiary Hearing

       Federal courts reviewing state-court decisions on the merits under § 2254(d) are

limited to the state-court record. Cullen v. Pinholster, 

, 181 (2011). As

explained above, the state court did not adjudicate Rivera’s constitutional claim on the

merits. Therefore, § 2254(d) does not bar an evidentiary hearing. 

Where

§ 2254(d) does not bar federal habeas relief, § 2254(e) “still restricts the discretion of

federal habeas courts to consider new evidence when deciding claims that were not

adjudicated on the merits in state court.” 

       1. Evidentiary hearing is not barred by 28 U.S.C. § 2254(e)(2)

       A state prisoner who failed to develop the factual basis of his claim in state court

is barred from receiving an evidentiary hearing in federal court unless he satisfies certain

exceptions. 28 U.S.C. § 2254(e)(2). A prisoner does not fail to develop the factual basis if

he “was diligent in his attempt to develop a factual basis for his claim in the state court

proceedings.” Palmer v. Hendricks, 

, 392 (3d Cir. 2010); see also Williams

                                              8
v. Taylor, 

, 432 (2000) (“Under the opening clause of § 2254(e)(2), a failure

to develop the factual basis of a claim is not established unless there is lack of diligence,

or some greater fault, attributable to the prisoner or the prisoner’s counsel.”). If Rivera

pursued his claim with diligence in the state court, but the claim remained undeveloped,

he is eligible for an evidentiary hearing. Han Tak Lee v. Glunt, 

, 406 (3d

Cir. 2012).

       “Diligence . . . depends upon whether the prisoner made a reasonable attempt, in

light of the information available at the time, to investigate and pursue claims in state

court.” Williams v. 

. Diligence requires “in the usual case that the

prisoner, at a minimum, seek an evidentiary hearing in state court in the manner

prescribed by state law.” 

       Here, Rivera pursued his due process claim diligently in state court. Rivera

requested but was denied an evidentiary hearing in the PCRA court. This request

constituted sufficient diligence under § 2254(e)(2). 

–26 (holding

that petitioner showed sufficient diligence to escape the bar of § 2254(e)(2) by requesting

an evidentiary hearing in PCRA court to develop factual record); see also 

(holding that petitioner was diligent when he filed motion for access to evidence,

but motion was denied, depriving him of further opportunity to investigate).

       2. An evidentiary hearing was warranted

       “In cases where an applicant for federal habeas relief is not barred from obtaining

an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing

                                              9
rests in the discretion of the district court.” Schriro v. Landrigan, 

, 468

(2007). That discretion is guided by two considerations: “(i) ‘whether the petition

presents a prima facie showing which, if proven, would enable the petitioner to prevail on

the merits of the asserted claim,’ and (ii) whether the relevant factual allegations to be

proven at the evidentiary hearing are ‘contravened by the existing record’ or the record

‘otherwise precludes habeas relief.’” 

–07 (quoting 

).

              i. Prima facie showing

       Rivera’s petition presents a prima facie showing which, if proven, would allow

him to prevail on the merits. Rivera outlined four allegations or bases for relief which he

claims meet the objective standards for constitutional judicial disqualification:

       (1) a[n] elected criminal court official arrange[d] for the transfer of a case;
       (2) where his niece is the victim of a violent sexual assault;
       (3) to a judge with whom he has a “friendship”; and
       (4) that judge is known to impose harsh sentences on sex offenders.

       Appellant’s Reply Br. at 4. An evidentiary hearing would allow Rivera the

opportunity to discover the full text of Matta’s e-mail as well as other relevant evidence,

including any subsequent communications between and among the court administrator,

Matta, and Judge McDaniel. For the reasons explained below, additional evidence may

prove that Rivera’s due process rights were violated. Neither the Pennsylvania Superior

Court nor the District Court undertook this inquiry. Under our de novo review, we

undertake it now.


                                              10
       “It is axiomatic that ‘a fair trial in a fair tribunal is a basic requirement of due

process.’” Caperton v. A.T. Massey Coal Co., 

, 876 (2009) (alteration

omitted) (quoting In re Murchison, 

, 136 (1955)). To ensure the protection

of that right, the Supreme Court has held that recusal is required when, “objectively

speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too

high to be constitutionally tolerable.’” Rippo v. Baker, 

, 907 (2017)

(quoting Withrow v. Larkin, 

, 47 (1975)). Recognizing that actual bias cannot

always be determined, the Supreme Court relies on an objective standard asking

“whether, as an objective matter, ‘the average judge in his position is likely to be neutral,

or whether there is an unconstitutional potential for bias.’” Williams v. Pennsylvania, 

, 1905 (2016) (quoting 

). In Tumey v. Ohio, the

Supreme Court held that “[e]very procedure which would offer a possible temptation to

the average man as a judge to forget the burden of proof required to convict the

defendant, or which might lead him not to hold the balance nice, clear, and true between

the state and the accused denies the latter due process of law.” 

, 532 (1927).

       In both Caperton and Williams v. Pennsylvania, the Supreme Court concluded that

state justices, who had themselves considered and denied motions for their recusal, were

constitutionally disqualified. See 

–74, 886; Williams v.

, 1908 (noting that “[b]ias is easy to attribute to others

and difficult to discern in oneself”). The risk of bias in Caperton stemmed from the

justice’s connection to a litigant who had provided a disproportionately large portion of

                                               11
the donations that funded the justice’s state Supreme Court campaign just before that case

came before the 

. The Court asked whether, “‘under a realistic

appraisal of psychological tendencies and human weakness,’ the interest ‘pose[d] such a

risk of actual bias or prejudgment’” in a case where the litigant may have sponsored the

justice’s campaign for just this purpose. 

(quoting 

).

It concluded there was indeed “a serious, objective risk of actual bias that required . . .

recusal.” 

In Williams v. Pennsylvania, the risk of bias occurred because of a

justice’s decades-prior involvement in the prosecution of the habeas 

, 1907. The Court characterized the risk of bias as “reflected in the due process

maxim that ‘no man can be a judge in his own case and no man is permitted to try cases

where he has an interest in the outcome.’” 

(quoting 

). This Court has held that a judge was statutorily disqualified when he, “in stark,

plain and unambiguous language, told the parties that his goal in the criminal case, from

the beginning, was something other than what it should have been and, indeed, was

improper.” United States v. Antar, 

, 576 (3d Cir. 1995), overruled on other

grounds by Smith v. Berg, 

, 534 (3d Cir.2001). Similar concerns arise here if

Matta’s communications influenced Judge McDaniel’s goal in Rivera’s case.

       Here, Judge McDaniel’s personal relationship with the uncle of the victim would

not alone require her recusal on constitutional grounds. See 

(“matters of kinship . . . would seem generally to be matters merely of legislative

discretion”); Johnson v. Carroll, 

, 262 (3d Cir. 2004) (explaining that the

                                              12
Supreme Court has never held “that an appearance of bias on the part of a judge, without

more, violates the Due Process Clause”). However, the added possibility that Matta, an

officer of the Court who had a personal interest in the outcome, may have interceded,

could require her recusal.

       Matta’s e-mail provides support for Rivera’s allegation that Matta interfered in the

assignment of a case in which his niece was the victim of a vicious rape and robbery, and

that Matta did so with the purpose of securing a harsher sentence for Rivera. As the

Supreme Court explained in Caperton, “[j]ust as no man is allowed to be a judge in his

own cause, similar fears of bias can arise when—without the consent of the other

parties—a man chooses the judge in his own cause.” 

. Because

no hearing has been conducted on this issue, the excerpts of the e-mail are the only

available evidence. We do not know whether Judge McDaniel knew of Matta’s

intercession. Rivera’s offer of the Post-Gazette article provides a prima facie showing of

intolerable interference by Matta which could have caused the “probability of actual bias”

of Judge McDaniel to be “too high to be constitutionally tolerable.” 

.

              ii. Existing record

       Rivera’s factual allegations are not contradicted by the record and the record does

not otherwise preclude habeas relief. There has been no evidentiary hearing in any court,

so the record is devoid of evidence contradicting Rivera’s claims. We have only his offer




                                            13
of the Post-Gazette article. That article neither proves nor disproves Rivera’s allegations.

Nothing else in the record precludes habeas relief.

       An evidentiary hearing is not precluded by § 2254(e)(2), and it could advance

Rivera’s claim. We conclude that such a hearing is warranted.

                                            IV.

       For the foregoing reasons, we will vacate the District Court’s order in part and

remand for an evidentiary hearing on the question of whether Rivera’s due process rights

were violated by the reassignment because of an unconstitutional potential for bias.




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