Opinion
Criminal Action No. 08-cr-89-JLK Civil Action No. 12-cv-2925-JLK
11-08-2012
UNITED STATES OF AMERICA, Plaintiff, v. 1. ARNOLD ZALER Defendant.
ORDER
KANE, J.
Defendant Arnold Zaler, through new counsel, D'Arcy Straub, moves under 28 U.S.C. § 2255 to vacate or set aside the concurrent 15-year sentences I imposed against him in Criminal Action No. 08-cr-89-JLK. A previous appeal of these sentences as substantively and procedurally unreasonable has already been rejected by the Tenth Circuit Court of Appeal. See U.S. v. Zaler, 405 Fed. Appx. 301 (10th Cir. 2010)(lengthy opinion unpublished).
Mr. Zaler's § 2255 Motion is premised on "judicial faith-based bias," which Mr. Zaler purports not to have discovered "until November 2010, which was only a month before the 10th Circuit's decision in December 2012." See Motion to Vacate (Doc. 90) at pp. 4-5 of 76. The source of this information appears to be Mr. Straub, an attorney who was a party litigant in an unrelated civil action in my court nearly ten years ago. Straub v. Lazaroff, Civil Action No. 00-cv-2331-JLK (D. Colo.). According to Mr. Zaler, I am, or culturally identify myself as, "Jewish" (Doc. 90, at 16) and sentenced him excessively and unreasonably as a result of a Jewish "faith-based bias" he claims is evidenced by my handling of Mr. Straub's old civil case.
As Mr. Zaler notes in his Addendum to § 2255 Form (Doc. 90, p. 10 of 76), this assertion would, under ordinary circumstances, support a denial of Mr. Zaler's Motion to Vacate as untimely under 28 U.S.C. § 2255(f)(imposing a 1-year period of limitation for filing motions under § 2255, which period begins to run from "the date on which the facts supporting the claim or claims presented [were or] could have been discovered through the exercise of due diligence." Because I recuse myself from the § 2255 action, I leave the question of equitable tolling for the judge ultimately reassigned.
The matter is before me now on Mr. Zaler's Motion to Recuse under 28 U.S.C. § 455(a) (Doc. 3), which is premised on the same faith-based bias allegations. Under 28 U.S.C. § 455(a), recusal is appropriate where the judge's impartiality "might reasonably be questioned." No affidavits are required. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987). Under this standard, the judge must recuse when there is the appearance of bias, regardless of whether there is actual bias. Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir.2002). "[S]ection 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestions of personal bias or prejudice." Franks v. Nimmo, et al., 796 F.2d 1230 (10th Cir.1986)(quoting United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982)). Having ruled against a particular litigant (or his counsel) in an unrelated case is per se insufficient by itself to warrant recusal under § 455(a). See United States v. Grismore, 564 F.2d 929 (10th Cir.1977).
Nevertheless, because I recused myself in Mr. Straub's case (for the entirely unfaith-based bias reason that I knew and had supported Alby Segall, a potential witness in that case, when he was a candidate for office in a non-partisan municipal election), I agree it is best that this case be reassigned. See Order on Motion to Recuse, No. 11-cv-2331 (Doc. 90-7). I am open to ruling on the merits of any well-plead claim presented by Mr. Zaler or his counsel, and to consider impartially every representation they make in a document signed and filed after an inquiry reasonable under the circumstances. I agree that it makes sense in this case to avoid the inevitable headaches that would ensue were I to rule on Mr. Zaler's § 2255 Motion over his objection. Accordingly, Mr. Zaler's Motion to Recuse (Doc. 91) is GRANTED. The Motion to Vacate Sentence (Doc. 90), should be REASSIGNED to a different judge.
John L. Kane
SENIOR U.S. DISTRICT JUDGE