Opinion
4:11-CR-00232-BRW
04-04-2013
UNITED STATES OF AMERICA PLAINTIFF v. ANTHONY TYRONE DAVIS DEFENDANT
ORDER
Pending is Defendant's Motion and Brief to Disqualify Magistrate Judge Joe Volpe Pursuant to 28 U.S.C. § 455 (Doc. No. 139).
Section 455 provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Courts presented with a motion under § 455 consistently have held that a petitioner must first present a motion for recusal to the judge whose partiality is at issue.
See Clay v. Brow, Hopkins & Stambaugh, 892 F. Supp. 11, 13 (D.D.C. 1995) (citing United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981); Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 635 (5th Cir. 1971); In re School Asbestos Litigation, 977 F.2d 764, 775 (3rd Cir. 1992); Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir. 1980)); see also In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312-14 (2d Cir. 1988); United States v. Outler, 659 F.2d 1306, 1312 (5th Cir. 1981); Doe v. Nat'l Bd. of Med. Exam'rs., No. CIV. A. 99-4532, 2001 WL 1003206 (E.D. Penn. Aug. 14, 2001); S. Agric. Co. v. Dittmer, 568 F. Supp. 645, 646 (W.D. Ark. 1983); MacNeil v. Americold Corp., 735 F. Supp. 32, 35 (D. Mass. 1990).
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No motion was filed before Judge Volpe, and this case is no longer pending before Judge Volpe. Accordingly, Defendant's Motion is DENIED as MOOT.
IT IS SO ORDERED this 4th day of April, 2013.
Billy Roy Wilson
UNITED STATES DISTRICT JUDGE