Opinion
2:98-CV-0194.
July 10, 2001.
ORDER DENYING PETITIONER'S MOTION TO RECUSE
Came this day for consideration the motion to recuse filed by petitioner on January 24, 2001. By his motion, petitioner contends the undersigned has demonstrated prejudice "toward petitioner in this case by ordering the respondent to answer an issue that was never alleged by petitioner in his petition in an attempt to undermine petitioner's constitutional issues and to have petitioner's original petition dismissed as moot." Petitioner appears to assert the following language, utilized by the undersigned in the October 11, 2000 Order to Show Cause issued to respondent, demonstrates the undersigned's prejudice:
Petitioner filed the habeas petition in this cause attacking a state conviction which had previously been reversed by the state courts and "seeking relief from the illegal cumulation order" which ordered the 65-year sentence imposed as a result of the conviction, now reversed, to run consecutive to a prior 30-year sentence.
The petitioner specifically attacks a conviction and sentence that has been reversed by a state appellate court. Consequently, respondent's answer need not address the merits of petitioner's individual claims attacking said conviction and sentence, but such answer shall address the issue of respondent's continued use of petitioner's reversed conviction and sentence in calculating petitioner's maximum prison term.
Said Order to Show Cause was entered only after petitioner had noted his conviction had already been reversed, but that "TDCJ-ID's record still shows the sentences are cumulated."
From the onset of this proceeding, petitioner's challenges to his aggravated sexual assault conviction and 65-year sentence were moot due to the reversal of that conviction by the state appellate court. Rather than dismissing the instant habeas action, however, the undersigned, in light of petitioner's contention that TDCJ-ID was still carrying the aggravated sexual assault conviction and sentence on its records, liberally construed petitioner's allegation to be that his custody was being unconstitutionally affected by an invalid sentence. Therefore, the Order to Show Cause was issued in an attempt to determine if petitioner's TDCJ-ID time was being calculated and/or affected by an invalid sentence.
Neither the "Motion to Recuse" or the "Affidavit in Support" contain any factual allegation which, even if true, would warrant disqualification or would cause any reasonable person to doubt the undersigned's impartiality. Petitioner's motion to recuse the Magistrate Judge is DENIED.
IT IS SO ORDERED.