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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ernest Valencia Gonzales,
Petitioner,

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vs.
Dora B. Schriro, et al.,
Respondents.

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) No. CV-99-2016-PHX-SMM
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) DEATH PENALTY CASE
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) ORDER
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Before the Court is Petitioner’s Motion for Recusal/Reassignment. The motion

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suggests that disqualification is required under 28 U.S.C. § 455. Respondents have declined

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to file a response. For the reasons set forth below, the motion is denied.

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BACKGROUND

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In 2006, Petitioner’s counsel moved to stay this action pursuant to Rohan ex rel. Gates

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v. Woodford, 334 F.3d 803 (9th Cir. 2003), abrogated by Ryan v. Gonzales, 133 S. Ct. 696

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(2013), contending that Petitioner was incapable of rationally communicating with or

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assisting counsel.

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competency and the issue of forcible medication, the Court entered an order on April 23,

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2008, denying Petitioner’s motions for a competency hearing and to stay these proceedings.

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(Doc. 187.) The Court, applying the Rohan framework, determined that the claims identified

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by counsel as those needing assistance from Petitioner were record-based or involved purely

(Doc. 102.)

After two years of litigation regarding Petitioner’s

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legal issues, and therefore would not potentially benefit from Petitioner’s ability to

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communicate rationally with counsel.

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After the Court denied a request for interlocutory appeal, Petitioner’s counsel filed an

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emergency petition for writ of mandamus in the Court of Appeals for the Ninth Circuit. On

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July 17, 2008, the Ninth Circuit issued an amended order directing Petitioner and Real Party

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in Interest Dora Schriro, then Director of the Arizona Department of Corrections, to file

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supplemental briefs, and invited this Court to file a supplemental response. Gonzales v. U.S.

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Dist. Court, No. 08-72188 (9th Cir. filed July 17, 2008). The Court accepted this invitation

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and provided to the appellate court a nine-page supplemental response. Dist. Court’s Supp.

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Response, Gonzales v. U.S. Dist. Court (9th Cir. Aug. 28, 2008).

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In 2010, the Ninth Circuit granted mandamus relief, remanding the matter to this

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Court to determine Petitioner’s competency to assist counsel. In re Gonzales, 623 F.3d 1242

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(9th Cir. 2010). However, on January 8, 2013, the United States Supreme Court reversed.

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Ryan v. Gonzales, 133 S. Ct. at 708. In June 2013, the Ninth Circuit ordered this matter

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“remanded to the district court for further proceedings consistent with the Supreme Court’s

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decision” in Gonzales. (Doc. 206.) This Court then issued an order setting a briefing

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schedule on Petitioner’s remaining claims. The instant motion followed.

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DISCUSSION

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Petitioner seeks recusal under 28 U.S.C. § 455(a), which mandates that “[a]ny justice,

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judge, or magistrate of the United States shall disqualify himself in any proceeding in which

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his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The standard for

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determining the appearance of partiality is an objective one and involves ascertaining

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“whether a reasonable person with knowledge of all the facts would conclude that the judge’s

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impartiality might reasonably be questioned.” Miles v. Ryan, 697 F.3d 1090, 1091 (9th Cir.

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2012) (quoting United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008)). This standard,

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based on a “well-informed, thoughtful observer,” must not be “so broadly construed that it

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becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated
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suggestion of personal bias or prejudice.” Id.

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In considering recusal under § 455(a), the Supreme Court has held that judicial rulings

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alone “almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United

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States, 510 U.S. 540, 555 (1994). Additionally, a judge’s opinions formed on the basis of

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facts introduced or events occurring in the course of a proceeding cannot support a partiality

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challenge unless they display a “deep-seated favoritism and antagonism that would make fair

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judgment impossible.” Id. “A judge must withdraw where she acts as part of the accusatory

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process, becomes embroiled in a running, bitter controversy with one of the litigants, or

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becomes so enmeshed in matters involving [a litigant] as to make it appropriate for another

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judge to sit.” Hurles v. Ryan, 706 F.3d 1021, 1037 (9th Cir. 2013) (internal quotations and

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citations omitted), petition for cert. filed, 2013 WL 3076565 (U.S. Jun. 17, 2013) (No. 12-

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1472).

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Here, Petitioner asserts that the Court’s impartiality might reasonably be questioned

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because the Court “became an advocate against Petitioner” when it filed a supplemental

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response to his mandamus petition in the Ninth Circuit. (Doc. 210 at 6.) Although it is

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ordinarily undesirable to have a trial judge assume an active role in mandamus litigation, the

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Federal Rules of Appellate Procedure provide that the court of appeals may invite or order

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a response, and a trial judge may request permission to respond. See Fed. R. App. P.

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21(b)(4). This permits an appellate court to have available any and all information pertinent

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to its decision to grant or deny mandamus relief. See, e.g., In re Braxton, 258 F.3d 250, 263

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(4th Cir. 2001) (Traxler, J., concurring in result) (observing that trial court’s supplemental

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opinion provided needed clarification of its ruling).

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Here, the Ninth Circuit invited a written response from the Court pursuant to Rule

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21(b)(4). That response was filed in the appellate court and presumably considered by both

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the Ninth Circuit and the Supreme Court during certiorari proceedings. At no point did either

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the Ninth Circuit or the Supreme Court suggest that the responsive brief was improper. Nor

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did the Ninth Circuit direct reassignment of the case when it remanded the matter back to this
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Court. Given these facts, a well-informed, thoughtful observer would not conclude that this

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Court’s impartiality might reasonably be questioned based on the act of submitting an invited

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responsive brief to Petitioner’s mandamus petition.

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Petitioner’s motion refers only to the filing of the brief as a basis for recusal, not to

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any language or statements contained therein. In any event, nothing in the brief would cause

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a reasonable person to question the Court’s impartiality. The brief first provided relevant

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background concerning the District of Arizona’s general procedures for managing capital

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habeas cases, the procedural history of Petitioner’s case, and the rationale underlying the

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Court’s case management decisions in relation to the competency issue. The Court then

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undertook to explain its understanding of the Rohan decision and its application to

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Petitioner’s case, much of which reiterated analysis set forth in the April 2008 order from

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which Petitioner sought mandamus relief. The “mere fact that a judge has previously

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expressed an opinion on a point of law” and “prior rulings in the proceeding” do not

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ordinarily provide grounds for recusal under § 455. Holland, 519 F.3d at 914 n.5 (quoting

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United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).

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Nothing in Hurles v. Ryan, cited by Petitioner, requires a different result. There, the

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Ninth Circuit remanded for an evidentiary hearing on a claim of judicial bias stemming from

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the filing of a responsive brief on behalf of the trial judge during a pretrial mandamus-like

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proceeding called a “special action” in the Arizona Court of Appeals. During Hurles’s

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special action proceeding, the state appellate court found it improper for trial judges to file

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pleadings in special actions solely to advocate the correctness of an individual ruling in a

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single case. Id. at 1028. Finding that the trial judge lacked standing in the special action, the

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state appellate court declined to consider her responsive brief. This stands in stark contrast

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to the situation here, in which the federal rules permit an appellate court to invite a trial court

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to respond to a mandamus petition and the Ninth Circuit in this case invited such a response.

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Moreover, unlike the brief filed by this Court, the responsive brief at issue in Hurles

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contained questionable statements about the crime and defense counsel. Id. at 1027-28.
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In sum, a reasonable person with knowledge of all the facts would not reasonably

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question the Court’s impartiality. The Court’s sole interest in this matter, both then and now,

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has been the proper administration of justice. By accepting the Ninth Circuit’s invitation to

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file a response to the mandamus petition, the Court did not act as part of the accusatory

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process, become embroiled in a “running, bitter controversy” with either party, or become

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so enmeshed in matters involving a litigant that disqualification is required. Hurles, 706 F.3d

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at 1037. Moreover, nothing in the tenor of the Court’s responsive brief suggests that it has

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“a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky,

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510 U.S. at 555. Therefore, recusal is not appropriate in this case.

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Based on the foregoing,

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IT IS ORDERED that Petitioner’s Motion for Recusal/Reassignment (Doc. 210) is

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DENIED.

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IT IS FURTHER ORDERED that the Clerk of Court shall substitute Charles L.

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Ryan, Director of the Arizona Department of Corrections, as a Respondent in place of his

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predecessor Dora B. Schriro, pursuant to Fed. R. Civ. P. 25(d)(1).

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DATED this 23rd day of July, 2013.

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