Opinion
DOCKET NO. 2:06 CR 20022.
October 9, 2008
MEMORANDUM ORDER
Presently before the court is a "Motion to Withdraw Voluntarily as Judge" [doc. 46]. In essence, the defendant is asking the undersigned to recuse herself from further proceedings in this case so that "the reality and appearance of impartiality can be preserved."
Motion, page 1.
Both recusal statutes, 28 U.S.C. §§ 144 and 455, require a "proceeding" pending before the judge sought to be recused. The term "proceeding" implies "the judge's participation in decisions affecting the substantive rights of the litigants to an actual case or controversy." United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988). No proceeding is currently pending before this court. The defendant is filing this motion in anticipation of filing a § 2255 motion. As to the contemplated section 2255 motion, the motion to recuse is untimely because it is premature. United States v. Bowens, 2008 WL 4156851, 1 (5th Cir., 2008). As such, this court lacks jurisdiction to hear the motion. See United States v. Day, 215 F. App'x 975 (11th Cir. 2007) (holding that the district judge lacked power to hear a motion to recuse filed after judgment but before a habeas petition was filed).