Ealy v. Barrett (In re Ealy)

Full title: IN RE: LANCE Q. ELLIS EALY, LARRY E. EALY, Petitioner, v. JAMES R…

Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

Date published: Sep 9, 2014

Case No. 3:14-cv-263 (S.D. Ohio Sep. 9, 2014)

Opinion

Case No. 3:14-cv-263

09-09-2014

IN RE: LANCE Q. ELLIS EALY, LARRY E. EALY, Petitioner, v. JAMES R. BARRETT, et al., Respondents.

Magistrate Judge Michael R. Merz

District Judge Thomas M. Rose

ORDER STRIKING AFFIDAVIT FOR DISQUALIFICATION

This habeas corpus is before the Court on Larry Ealy's "Affidavit for Disqualification and Change of Judge for Cause Pursuant to 28 U.S.C. 455a with 144 Affidavit" (Doc. No. 11). The evident purpose of the filing is to disqualify District Judge Michael R. Barrett (whom Ealy persists in calling "James") as the presiding judge in the case of United States of America v. Lance Ealy, Case No. 3:13-cr-175.

A request for disqualification must be directed in the first instance to the judge who is sought to be disqualified. Goward v. United States, 2014 U.S. App. LEXIS 11694, *6 (6^th Cir. 2014), citing United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7^th Cir. 1985); United States v. Studley, 783 F.2d 934, 940 (9^th Cir. 1986); In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2^nd Cir. 1988) reh'g denied, 869 F.2d 116 (2^nd Cir. 1989); United States v. Brunsman, 2013 U.S. Dist. LEXIS 92971, *1 (S.D. Ohio 2013); MacNeil v. Americold Corp, 735 F. Supp. 32, 36 (D. Mass. 1990). It must be filed in the case in which disqualification is sought, not in a parallel habeas case. It must be filed by a party to that case or his counsel.

Because the instant Affidavit fails on all three of these criteria, it is hereby STRICKEN. September 9, 2014.

s/ Michael R. Merz

United States Magistrate Judge