Opinion
CIVIL ACTION NO. 00-2534 SECTION "A" (6).
December 14, 2000.
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S § 144 MOTION FOR RECUSAL OF DISTRICT JUDGE
Before the Court is the pro se § 2254 petitioner's, Perry Jackson's ("Jackson's"), Title 28, U.S.C. § 144 "Motion for Recusal of United States District Judge," filed in the above entitled captioned case. Section 144 of Title 28 provides, in part: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." 28 U.S.C. § 144.
The captioned case involves Jackson's Section 2254 claims of violations of his constitutional rights on account of alleged breach of his plea agreement. More specifically, petitioner claims that he pled guilty on July 26, 1999, allegedly on the basis of a false promise that he would receive only a thirty month sentence, to be served concurrently with his other sentences. Petitioner argues that the longer sentence imposed by the state court judge, on account of enhancement and as a result of his being adjudicated a multiple offender, constituted a breach of the plea agreement, rendering it null and void.
The thrust of petitioner's motion to recuse is set forth in his motion, with an "Affidavit" attached, dated and signed by petitioner only, stating: "I, Perry Jackson, do declare that the information presented with the Motion has been presented to the best of his understanding and knowledge." See, Affidavit in Support of Motion for Recusal. Essentially, petitioner's motion alleges that in the previous matter before this Court numbered CA 00-1887 "A", this Court discriminated against him personally and showed bias in favor of opposing parties, because this Court ruled against petitioner without conducting an evidentiary hearing and/or a fair and just de novo review. More specifically, petitioner asserts that this Court's sole concern is "not letting the Factfinding process function as it should, to seek out the truth" and that "a miscarriage of justice is sure to occur if this matter is to remain before [this] United States District Judge, who cannot render a fair ruling in this action based upon the truth!" See, Petitioner's Motion for Recusal, at unnumbered p. 4 (emphasis in original)
In matter numbered CA 00-1887 "A", pursuant to its own Order and Reasons entered November 7, 2000, and after having considered the record, the petitioner's objections, the applicable law, as well as the Magistrate Judge's Report and Recommendation, this Court transferred petitioner' s 2241 application, for writ of habeas corpus to the United States District Court for the Western District of Louisiana, the jurisdiction of confinement the more convenient forum. See, Order and Reasons, entered November 7, 2000, (Rec. Doc. No. 13) attached.
Section 144 of Title 28 provides, in part: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." 28 U.S.C. § 144..
28 U.S.C. § 455 is not unlike Section 144. It provides in pertinent part that any justice, judge or magistrate shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned. 28 U.S.C. § 455 (a). "Substantively, the two sections [i.e., §§ 144 and 455] are quite similar, if not identical." Phillips v. Joint Legislative Com., 637 F.2d 1014, 1019 (5th Cir. 1981), cert. denied, 104 S.Ct. 2035 (1982).
A recusal motion, whether under Section 144 or 455, is committed to the sound discretion of the district judge. Disqualification motions must rest on facts sufficient to meet the standards of sections 144 and 455, "so as to avoid giving parties a random veto over the assignment of judges."
Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir. 1982), cert. denied, 104 S.Ct. 69 (1983).
United States v. Giorgio, 840 F.2d 1022, 1034 (1st Cir. 1988); Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1409 n. 8 (5th Cir. 1994).
Where as here, the motion is filed pursuant to Section 144, the "judge must pass on the legal sufficiency of the affidavit, but not on the truth of the matters alleged." A legally sufficient affidavit must meet the following requirements: 1) the facts must be material and stated with particularity; 2) the facts must be such that if true they would convince a reasonable person that bias exists; and 3) the facts must show that the bias is personal, as opposed to judicial, in nature. Section 144, quite like Section 455, requires that any bias or prejudice must derive from an extrajudicial source. The Court here notes, however, that the defendant has elected to attempt disqualification of the undersigned, specifically pursuant to 28 U.S.C. § 144 only.
Phillips v. Joint Legislative Com., 637 F.2d 1014, 1019 (5th Cir. 1981); Chitimacha Tribe, 690 F.2d at 1165;Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975) (en banc), cert. denied, 96 S.Ct. 1685 (1976) (Legal sufficiency of the affidavit is a question of law.); Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 96 S.Ct. 1685 (1976). In Chitimachi Tribe, the Fifth Circuit observed that, the transfer of a disqualification motion is somewhat irregular and not to be encouraged, noting that referring such motion to another judge raises problems of inconvenience and delay. 690 F.2d at 1162.
Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975) (en banc), cert. denied, 96 S.Ct. 1685 (1976); Henderson v. Department of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990).
United States v. Smith, 1995 WL 555578 (E.D. La.).
See, Petitioner's Motion for Recusal of United States District Judge, Hon. Charles Schwartz, Jr. pursuant to 28 U.S.C. § 144.
Affidavits under Section 144 are strictly scrutinized for form, timeliness, and sufficiency. The petitioner's "affidavit", albeit not in proper form, and/or his accompanying motion, which submissions refer only to a prior order issued by the Court in matter numbered CA 00-1887 "A" transferring such cause to the United States District Court for the Western District of Louisiana, are not legally sufficient. The bias alleged is judicial in nature and not personal or extrajudicial.
United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972), cert. denied, 94 S.Ct. 450 (1973).
See, Phillips, 637 F.2d at 1020; United States v. Serrano, 607 F.2d 1145, 1150 (5th Cir. 1979), cert. denied, 100 S.Ct. 1655 (1980) ; and Davis v. Board of School Commissioners, 517 F.2d 1044 (5th Cir. 1975).
The mere filing of an affidavit of bias or prejudice does not automatically disqualify a judge. It is only after the judge, against whom it is directed, examines the affidavit and finds it to be timely and sufficient that his disqualification is made mandatory.
Berger v. United States, 41 S.Ct. 230, 232-33 (1921).
The opinion of the Fifth Circuit in Phillips v. Joint Legislative Committee, 637 F.2d 1014 (5th Cir. 1981), is instructive and states in pertinent part:
[B]ias `must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.' Thus, a motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench.
Id., at 1020 [citations omitted].
Recusal is properly denied when the bias is judicial, not personal. The law is well-settled that a judge's adverse rulings to a party do not establish personal bias. It is clear from the record that the transfer order issued by this district court in the context of a prior judicial matter, is singularly judicial, rather than personal, in origin.
United States v. Grinnell Corp., 86 S.Ct. 1698, 1710 (1966) (For a bias to be personal it "must stem from an extrajudicial source. . . ."); United States v. Caicedo-Asprilla, 632 F.2d 1161, 1166 (5th Cir. 1980), cert. denied, 101 S.Ct. 1707 (1981); Douhit v. Jones, 619 F.2d 527, 538 (5th Cir. 1980), reh'g denied, 641 F.2d 345 (5th Cir. 1981) (Actions of a district judge that consisted solely of judicial actions did not indicate a personal bias.)
See, e.g., International Business Machines Corp., 618 F.2d 923 (2nd Cir. 1980) (although a ruling may be incorrect and/or subject to reversal on appeal for error, it does not mean that such ruling was motivated by personal bias).
In Phillips, supra, the Fifth Circuit explained:
Whether [the district court's] conclusions in every case are the same as those that we ... would have reached are immaterial. A judge is not a computing machine, and the judicial system is not constructed so that each judge must reach the same result as all judges in a given case. If a judge's "error" amounts to incorrect law or an abuse of discretion, appellate courts exist to correct it. Within that boundary, he not only may, but should, exercise his independent judgment on the facts and the law. Presumably, for this attribute, among others, he was appointed.
The Fifth Circuit has long disclaimed any notion of "`no-deposit/no-return judges, disposable after one use.'" There is no question but that the Court's ruling transferring petitioner's prior case to the Western District was judicial in nature. While the petitioner suggests that this Court's prior ruling was deficient because it was allegedly not based on a de novo review of all of the facts and evidence in the case, there is no hint of any specific fact or set of facts which point to any judicial bias or favoritism. There exists not even the slightest hint that this Court's prior ruling was based upon anything other than evidence pertinent to the issue before the Court. Petitioner's allegations are to the effect that this Court failed to consider enough evidence and simply "copped" the Magistrate Judge's report as its own. The record of this matter speaks for itself and indicates that this Court issued its own order with reasons addressing petitioner's objections, rather than simply adopting the report of the Magistrate Judge as its own opinion on the transfer issue. The context of the ruling was obviously a situation which can be characterized only as one that was as fully judicial as imaginable.
In Re Corrugated Container Antitrust Litigation, 614 F.2d 958, 966 (5th Cir. 1980), cert. denied, 101 S.Ct. 244 (1980)
Petitioner's submissions in the case at bar do not provide a reasonable basis for questioning this Court's impartiality pursuant to § 144.
Accordingly, and for all of the above and foregoing reasons,
IT IS ORDERED that the petitioner's Motion to Recusal of the Undersigned District Judge filed pursuant to 28 U.S.C. § 144 is DENIED.
New Orleans, Louisiana, this 14th day of December, 2000.