Gonzales, et al v. Schriro, et al

Filing 211

ORDER denying 210 Motion for Recusal/Reassignment. IT IS FURTHER ORDERED that the Clerk of Court shall substitute Charles L. Ryan, Director of the Arizona Department of Corrections, as a Respondent in place of his predecessor Dora B. Schriro, pursuant to Fed. R. Civ. P. 25(d)(1). (See document for further details). Signed by Senior Judge Stephen M McNamee on 7/23/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ernest Valencia Gonzales, Petitioner, 10 11 12 13 vs. Dora B. Schriro, et al., Respondents. 14 15 ) No. CV-99-2016-PHX-SMM ) ) ) DEATH PENALTY CASE ) ) ) ) ORDER ) ) ) ) ) 16 Before the Court is Petitioner’s Motion for Recusal/Reassignment. The motion 17 suggests that disqualification is required under 28 U.S.C. § 455. Respondents have declined 18 to file a response. For the reasons set forth below, the motion is denied. 19 BACKGROUND 20 In 2006, Petitioner’s counsel moved to stay this action pursuant to Rohan ex rel. Gates 21 v. Woodford, 334 F.3d 803 (9th Cir. 2003), abrogated by Ryan v. Gonzales, 133 S. Ct. 696 22 (2013), contending that Petitioner was incapable of rationally communicating with or 23 assisting counsel. 24 competency and the issue of forcible medication, the Court entered an order on April 23, 25 2008, denying Petitioner’s motions for a competency hearing and to stay these proceedings. 26 (Doc. 187.) The Court, applying the Rohan framework, determined that the claims identified 27 by counsel as those needing assistance from Petitioner were record-based or involved purely (Doc. 102.) After two years of litigation regarding Petitioner’s 1 legal issues, and therefore would not potentially benefit from Petitioner’s ability to 2 communicate rationally with counsel. 3 After the Court denied a request for interlocutory appeal, Petitioner’s counsel filed an 4 emergency petition for writ of mandamus in the Court of Appeals for the Ninth Circuit. On 5 July 17, 2008, the Ninth Circuit issued an amended order directing Petitioner and Real Party 6 in Interest Dora Schriro, then Director of the Arizona Department of Corrections, to file 7 supplemental briefs, and invited this Court to file a supplemental response. Gonzales v. U.S. 8 Dist. Court, No. 08-72188 (9th Cir. filed July 17, 2008). The Court accepted this invitation 9 and provided to the appellate court a nine-page supplemental response. Dist. Court’s Supp. 10 Response, Gonzales v. U.S. Dist. Court (9th Cir. Aug. 28, 2008). 11 In 2010, the Ninth Circuit granted mandamus relief, remanding the matter to this 12 Court to determine Petitioner’s competency to assist counsel. In re Gonzales, 623 F.3d 1242 13 (9th Cir. 2010). However, on January 8, 2013, the United States Supreme Court reversed. 14 Ryan v. Gonzales, 133 S. Ct. at 708. In June 2013, the Ninth Circuit ordered this matter 15 “remanded to the district court for further proceedings consistent with the Supreme Court’s 16 decision” in Gonzales. (Doc. 206.) This Court then issued an order setting a briefing 17 schedule on Petitioner’s remaining claims. The instant motion followed. 18 DISCUSSION 19 Petitioner seeks recusal under 28 U.S.C. § 455(a), which mandates that “[a]ny justice, 20 judge, or magistrate of the United States shall disqualify himself in any proceeding in which 21 his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The standard for 22 determining the appearance of partiality is an objective one and involves ascertaining 23 “whether a reasonable person with knowledge of all the facts would conclude that the judge’s 24 impartiality might reasonably be questioned.” Miles v. Ryan, 697 F.3d 1090, 1091 (9th Cir. 25 2012) (quoting United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008)). This standard, 26 based on a “well-informed, thoughtful observer,” must not be “so broadly construed that it 27 becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated -2- 1 suggestion of personal bias or prejudice.” Id. 2 In considering recusal under § 455(a), the Supreme Court has held that judicial rulings 3 alone “almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United 4 States, 510 U.S. 540, 555 (1994). Additionally, a judge’s opinions formed on the basis of 5 facts introduced or events occurring in the course of a proceeding cannot support a partiality 6 challenge unless they display a “deep-seated favoritism and antagonism that would make fair 7 judgment impossible.” Id. “A judge must withdraw where she acts as part of the accusatory 8 process, becomes embroiled in a running, bitter controversy with one of the litigants, or 9 becomes so enmeshed in matters involving [a litigant] as to make it appropriate for another 10 judge to sit.” Hurles v. Ryan, 706 F.3d 1021, 1037 (9th Cir. 2013) (internal quotations and 11 citations omitted), petition for cert. filed, 2013 WL 3076565 (U.S. Jun. 17, 2013) (No. 12- 12 1472). 13 Here, Petitioner asserts that the Court’s impartiality might reasonably be questioned 14 because the Court “became an advocate against Petitioner” when it filed a supplemental 15 response to his mandamus petition in the Ninth Circuit. (Doc. 210 at 6.) Although it is 16 ordinarily undesirable to have a trial judge assume an active role in mandamus litigation, the 17 Federal Rules of Appellate Procedure provide that the court of appeals may invite or order 18 a response, and a trial judge may request permission to respond. See Fed. R. App. P. 19 21(b)(4). This permits an appellate court to have available any and all information pertinent 20 to its decision to grant or deny mandamus relief. See, e.g., In re Braxton, 258 F.3d 250, 263 21 (4th Cir. 2001) (Traxler, J., concurring in result) (observing that trial court’s supplemental 22 opinion provided needed clarification of its ruling). 23 Here, the Ninth Circuit invited a written response from the Court pursuant to Rule 24 21(b)(4). That response was filed in the appellate court and presumably considered by both 25 the Ninth Circuit and the Supreme Court during certiorari proceedings. At no point did either 26 the Ninth Circuit or the Supreme Court suggest that the responsive brief was improper. Nor 27 did the Ninth Circuit direct reassignment of the case when it remanded the matter back to this -3- 1 Court. Given these facts, a well-informed, thoughtful observer would not conclude that this 2 Court’s impartiality might reasonably be questioned based on the act of submitting an invited 3 responsive brief to Petitioner’s mandamus petition. 4 Petitioner’s motion refers only to the filing of the brief as a basis for recusal, not to 5 any language or statements contained therein. In any event, nothing in the brief would cause 6 a reasonable person to question the Court’s impartiality. The brief first provided relevant 7 background concerning the District of Arizona’s general procedures for managing capital 8 habeas cases, the procedural history of Petitioner’s case, and the rationale underlying the 9 Court’s case management decisions in relation to the competency issue. The Court then 10 undertook to explain its understanding of the Rohan decision and its application to 11 Petitioner’s case, much of which reiterated analysis set forth in the April 2008 order from 12 which Petitioner sought mandamus relief. The “mere fact that a judge has previously 13 expressed an opinion on a point of law” and “prior rulings in the proceeding” do not 14 ordinarily provide grounds for recusal under § 455. Holland, 519 F.3d at 914 n.5 (quoting 15 United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)). 16 Nothing in Hurles v. Ryan, cited by Petitioner, requires a different result. There, the 17 Ninth Circuit remanded for an evidentiary hearing on a claim of judicial bias stemming from 18 the filing of a responsive brief on behalf of the trial judge during a pretrial mandamus-like 19 proceeding called a “special action” in the Arizona Court of Appeals. During Hurles’s 20 special action proceeding, the state appellate court found it improper for trial judges to file 21 pleadings in special actions solely to advocate the correctness of an individual ruling in a 22 single case. Id. at 1028. Finding that the trial judge lacked standing in the special action, the 23 state appellate court declined to consider her responsive brief. This stands in stark contrast 24 to the situation here, in which the federal rules permit an appellate court to invite a trial court 25 to respond to a mandamus petition and the Ninth Circuit in this case invited such a response. 26 Moreover, unlike the brief filed by this Court, the responsive brief at issue in Hurles 27 contained questionable statements about the crime and defense counsel. Id. at 1027-28. -4- 1 In sum, a reasonable person with knowledge of all the facts would not reasonably 2 question the Court’s impartiality. The Court’s sole interest in this matter, both then and now, 3 has been the proper administration of justice. By accepting the Ninth Circuit’s invitation to 4 file a response to the mandamus petition, the Court did not act as part of the accusatory 5 process, become embroiled in a “running, bitter controversy” with either party, or become 6 so enmeshed in matters involving a litigant that disqualification is required. Hurles, 706 F.3d 7 at 1037. Moreover, nothing in the tenor of the Court’s responsive brief suggests that it has 8 “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 9 510 U.S. at 555. Therefore, recusal is not appropriate in this case. 10 Based on the foregoing, 11 IT IS ORDERED that Petitioner’s Motion for Recusal/Reassignment (Doc. 210) is 12 DENIED. 13 IT IS FURTHER ORDERED that the Clerk of Court shall substitute Charles L. 14 Ryan, Director of the Arizona Department of Corrections, as a Respondent in place of his 15 predecessor Dora B. Schriro, pursuant to Fed. R. Civ. P. 25(d)(1). 16 DATED this 23rd day of July, 2013. 17 18 19 20 21 22 23 24 25 26 27 -5-

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