Remand for an evidentiary hearing was required where judge became involved in capital defendant’s appeal by making statements concerning guilt before the trial. Hurles appealed the district court’s denial of his federal habeas petition challenging his conviction for capital murder and the imposition of a death sentence. Hurles contended that the judge’s failure to recuse herself from his trial and sentencing denied him due process of law. The trial judge had summarily denied Hurles the appointment of co-counsel, and trial counsel petitioned for appellate review. The trial judge then filed a responsive pleading defending her ruling, commenting on the overwhelming evidence of guilt and questioning the competence of trial counsel. The appellate court denied the trial judge standing to appear, holding it was improper for judges to file pleadings to defend their decisions. However, the trial judge continued to preside over the proceedings in which Hurles was convicted, and sentenced Hurles to death. The district court denied habeas relief. The appellate court remanded for an evidentiary hearing. The Constitution requires judicial recusal in cases where the probability of actual bias is too high to be constitutionally tolerable. Hurles was not given the opportunity to develop his claim that the trial judge was biased. Because the allegation of judicial bias could entitle Hurles to habeas relief, the district court erred when it denied his claim without an evidentiary hearing.