Turner v. United States of America

Filing 20

MEMORANDUM OPINION AND ORDER re 19 Brief filed by Hayzen Turner, Jr. Movant's motions contained in 19 , Motion for Reconsideration and Motion for Recusal, are DENIED, as further set out in order. Signed by Judge Virginia Emerson Hopkins on 12/07/12. (CVA)

FILED
2012 Dec-07 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HAYZEN TURNER, JR.,
Movant/Defendant,
v.
UNITED STATES OF AMERICA,
Respondent .

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Case No.: 2:09-CV-8006-VEHPWG (2:07-CR-114-VEH-PWG)

MEMORANDUM OPINION AND ORDER
Pending before the court is Movant's Motion to Reconsider (Doc. 19)
("Memorandum of Law and Facts Supporting Motion for Reconsideration"), filed on
December 3, 2012. In the Motion, Movant cites several grounds upon which he urges
the court to revisit its order denying him relief under 28 U.S.C. § 2255 (Doc. 17)
("Memorandum Opinion"). In an attached affidavit (Doc. 19, pp. 28-29), he also
moves that the undersigned judge recuse herself in the present case. As Movant fails
to raise relevant material justifying reconsideration of the original order, the Motion is
DENIED. Additionally, because Movant fails to state a valid ground for recusal under
28 U.S.C. § 455(a), the attached Motion is also DENIED.
I.

STANDARDS OF REVIEW
A.

Reconsideration

In the interests of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy to be employed sparingly.
United States v. Bailey, 288 F. Supp. 2d 1261, 1267 (M.D. Fla. 2003) (quoting Lamer
Advertising of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999))
(quotation marks omitted), aff'd, 419 F.3d 1208 (11th Cir. 2005); see also Spellman
v. Haley, No. 97-T-640-N, 2004 WL 866837, at *2 (M.D. Ala. Feb. 22, 2002)
(“[L]itigants should not use motions to reconsider as a knee-jerk reaction to an adverse
ruling.”). Indeed, as a general rule, a motion to reconsider is only available when a
party presents the court with (1) evidence of an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to correct clear error or manifest
injustice. Summit Medical Center of Alabama, Inc. v. Riley, 284 F. Supp. 2d 1350,
1355 (M.D. Ala. 2003).
It is well established in this circuit that “[a]dditional facts and arguments that
should have been raised in the first instance are not appropriate grounds for a motion
for reconsideration.” Rossi v. Troy State Univ., 330 F. Supp. 2d 1240, 1249 (M.D.
Ala. 2002) (citing Villaflores v. Royal Venture Cruise Lines, Ltd., No. 96-2103, 1997
WL 728098, at *2 (M.D. Fla. Nov. 17, 1997), aff'd in part, vacated in part by Wilkins
v. Commercial Investment Trust Corp., 153 F.3d 1273 (11th Cir. 1993)), aff'd, 64 F.
App'x. 743 (11th Cir. 2003). Furthermore, the Eleventh Circuit has declared that “a
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motion to reconsider should not be used by the parties to set forth new theories of law.”
Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir.1997) (citing O'Neal v.
Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992)); see also Russell Petroleum Corp.
v. Environ Products, Inc., 333 F. Supp. 2d 1228, 1234 (M.D. Ala. 2004) (relying on
Mays to deny motion to reconsider when movant advanced several new arguments);
Coppage v. U.S. Postal Service, 129 F. Supp. 2d 1378, 1379–81 (M.D. Ga. 2001)
(similar). Likewise, motions to reconsider are not a platform to relitigate arguments
previously considered and rejected. American Marietta Corp. v. Essroc Cement
Corp., 59 F. App'x. 668 (6th Cir. 2003); see also Lazo v. Washington Mutual Bank,
10 F. App'x. 553 (9th Cir. 2001) (denying motion to reconsider where movant merely
reiterates meritless arguments).
Notwithstanding these limitations, reconsideration is appropriate to correct
manifest errors of law or fact. See Fed.R.Civ.P. 60(b); see also Caisse Nationale de
Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir.1996) (“Motions
for reconsideration serve a limited function: to correct manifest errors of law or fact or
to present newly discovered evidence.”) (quoting Keene Corp. v. Int'l Fidelity Ins. Co.,
561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). The grant
or denial of a motion to reconsider is left to the discretion of the district court. See
Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th Cir. 2000).
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B. Recusal
Federal law requires that a Judge recuse herself when there is an appearance of
impropriety. U.S. v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003). Section 455(a)
provides, “Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”
28 U.S.C. § 455(a). The very purpose of § 455(a) is to promote confidence in the
judiciary by avoiding even the appearance of impropriety whenever possible. Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847, 865 (1988). Therefore, the
standard of review for a § 455(a) motion “is whether an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on which recusal was
sought would entertain a significant doubt about the judge's impartiality.” Parker v.
Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). The Eleventh Circuit has
instructed that any doubts about a judge's impartiality must be resolved in favor of
recusal. Patti, 337 F.3d at 1321 (citing United States v. Kelly, 888 F.2d 732, 745 (11th
Cir. 1989)). A judge’s refusal to recuse is reviewed for abuse of discretion. U.S. v.
Amedeo, 487 F.3d 823, 828 (11th Cir. 2007) (citing U.S. v. Berger, 375 F.3d 1223,
1227 (11th Cir. 2004)).
III. ANALYSIS
A.

Reconsideration Motion
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In his Motion, Movant does not offer any proof of an intervening change in
controlling law, of the availability of new evidence that would bear on this case, or of
a necessity to correct clear error or manifest injustice. See Summit Medical Center,
284 F. Supp. 2d at 1355 (M.D. Ala. 2003). Rather, he appears to be merely rehashing
arguments previously considered and rejected from his antecedent § 2255 proceeding.
See Lazo, 10 F. App'x. at 553. Accordingly, his Reconsideration Motion is DENIED.
B.

Recusal Motion

The court finds that "no fully informed, objective, and disinterested lay observer
could entertain a significant doubt about the undersigned [j]udge's impartiality in the
present case." U.S. v. Williams, No. 6:01-cr-88-Orl-19KRS, 2007 WL 170305, at *2
(M.D. Fla. Jan. 18, 2007). Furthermore, Movant's Motion fails to state a valid ground
for recusal.
The motion for recusal in the present case rests on two foundations, both
concerning the undersigned judge's conduct: (1) her orders denying Movant's motions
during his previous § 2255 proceeding, and (2) her ultimate ruling denying him relief
in that proceeding. Doc. 19, pp. 16-17, 19. Together, according to Movant, these
actions reveal the judge's bias toward the Government and thus undermine the court's
appearance of impartiality that is required under federal law. However, adverse rulings
by a judge against a petitioner seeking that judge's recusal are not themselves legitimate
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grounds for recusal. See, e.g., Liteky v. U.S., 510 U.S. 540, 555 (1994) ("Judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion."). In
addition, opinions formed by a judge on the basis of evidence introduced or events
occurring during current or prior proceedings are seldom grounds for a judge to recuse
herself from a case. Liteky, 510 U.S. at 555; U.S. v. Kimball, 73 F.3d 269, 273 (10th
Cir. 1995). As the Eleventh Circuit has explained:
The alleged bias 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 may not ordinarily
be based on the judge's rulings in the same case. An exception to the general rule
that the bias must stem from an extrajudicial source exists where such pervasive
bias and prejudice is shown by otherwise judicial conduct as would constitute
bias against a party.
U.S. v. Meester, 762 F.2d 867, 884 (11th Cir.1985) (internal citations omitted) (internal
quotation marks omitted).
In the present case, Movant has not identified any extrajudicial source for bias
exhibited by the undersigned judge. Likewise, he has not substantiated any "pervasive
bias and prejudice" revealed by her rulings, apart from the bare fact that they align with
the Government's position. Id. In fact, the undersigned judge learned of Movant and
his underlying conduct exclusively as presiding judge in his prior § 2255 proceeding.
None of her actions taken there or in the present case raise an inference of personal
bias or reflect “a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555. Accordingly, his Recusal Motion is DENIED.
IV.

CONCLUSION
Accordingly, for all the reasons explained above, Movant's Motion for
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Reconsideration is DENIED, and his Motion for Recusal is also DENIED.
DONE and ORDERED this the 7th day of December, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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