Morley v. Elliott et al

Filing 97

ORDER denying 91 Petitioner's Petition/Motion for Recusal of Magistrate Judge. Signed by Magistrate Judge Lawrence O Anderson on 3/14/11.(DMT)

Morley v. Elliott et al

Doc. 97

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carlos Adrian Morley, Petitioner, vs. Yolanda Elliot, et al. Respondents.

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No. CV-09-1554-PHX-NVW (LOA) ORDER

This matter is before the undersigned on referral from the Honorable Neil V. Wake for consideration of Petitioner's Petition for Recusal of Magistrate Judge. (Docs. 91, 93) After the undersigned recommended that Petitioner's Petition for Writ of Habeas Corpus be denied, Petitioner filed the pending motion, arguing that the undersigned should recuse, or be disqualified, from this matter. In support of his motion, Petitioner notes that the undersigned's spouse, Aimee Anderson - Superior Court Judge, Maricopa County Superior Court since 2007, presided over a May 20, 2004 initial pre-trial conference in the underlying criminal matter when she was a Commissioner in the Superior Court. Petitioner asserts that his Petition for Writ of Habeas Corpus alleges numerous instances of ineffective assistance of counsel by defense counsel, Bruce Blumberg, including his failure to appear at the May 20, 2004 pretrial conference. Petitioner also argues that the undersigned displayed bias against him during an October 6, 2010 hearing based on several comments made during that proceeding. To put Petitioner's motion in context, the undersigned will briefly discuss the background of this case.

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I. Background On July 27, 2009, Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) Petitioner challenges his judgment of conviction, pursuant to two plea agreements, on July 2, 2004, in the Maricopa County Superior Court, for Solicitation to Commit First Degree Murder and for Fraudulent Schemes and Artifices in CR 2003-021342-001 DT, and for Trafficking in Stolen Goods in CR 2002-014160. Defense counsel Shelly Davis represented Petitioner in CR2003-021342, and defense counsel Bruce Blumberg represented Petitioner CR 2002-014160. On September 17, 2004, Petitioner was sentenced to an aggravated term of 7.5-years imprisonment for Solicitation to Commit First Degree Murder in CR2003-021342. (Respondents' Exhs. Q, S) During the same proceeding, the court suspended the imposition of sentence and placed Petitioner on concurrent 7-year terms of probation for his convictions of Fraudulent Schemes and Artifices and Trafficking in Stolen Goods in CR2002-014160 to commence after he completed his prison sentence in CR2003-021342. (Respondents' Exh. Q at 22-23; Exh. R) In his Petition for Writ of Habeas Corpus, Petitioner raises the following grounds for relief: Ground One: Ineffective assistance of counsel/invalid sentence. Ground Two: Illegal sentence, the court improperly relied on a contemporaneous conviction to enhance his sentence pursuant to A.R.S. § 13-604. Ground Three: Petitioner's sentence in CR2002-014160 was excessive in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Ground Four: The trial court breached the terms of the plea agreement. Ground Five: The trial court failed to establish that subject matter jurisdiction and venue were proper. Ground Six: At all stages of the criminal proceedings, Petitioner was under such duress that his mental capacity was diminished. Ground Seven: Petitioner's rights under the Double Jeopardy Clause were violated. Ground Eight: The trial court did not establish a sufficient factual basis to support Petitioner's conviction in CR2003-021342.
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Ground Nine: Petitioner did not knowingly and voluntarily waive his Sixth Amendment rights articulated in Blakely. (Docs. 1, 4) After several extensions of time, Respondents filed an Answer in opposition to

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the Petition on February 8, 2010. (Doc. 21) Also after several extensions of time, Petitioner
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filed a Reply on April 30, 2010. (Doc. 36)
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On July 7, 2010, the undersigned set this matter for a September 22, 2010 evidentiary
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hearing to consider "Petitioner's claim in Ground One that counsel [Shelly Davis] in
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CR2003-021342 was ineffective because she advised and permitted him to enter into a plea
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agreement that includes an admission to a historical prior conviction and exposed him to an
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enhanced sentence under A.R.S. § 13-604. . . ." (Doc. 38) Pursuant to Rule 8(c), Rules
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Governing Section 2254 proceedings, the undersigned appointed counsel, Joy Bertrand, to
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represent Petitioner for purposes of the evidentiary hearing. (Doc. 38) On the motion of
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Petitioner's counsel, the hearing was reset to November 9, 2010. (Doc. 42) On September
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17, 2010, Petitioner filed a motion to remove counsel, and appoint new counsel asserting
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that Joy Bertrand had not been forthcoming that the person assisting her with his case,
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Jameson Johnson, was a paralegal and not a licensed attorney. Petitioner was concerned that
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his attorney/client privilege had been violated. (Doc. 44) On the motion of Joy Betrand, the
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briefing on the motion for new counsel was sealed to protect litigation strategy and attorney18

client communications. (Doc. 44-48, 51) On October 6, 2010, the Court conducted a
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hearing to consider Petitioner's motion for new counsel. (Doc. 56) Petitioner, Joy Bertrand,
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and paralegal Jameson Johnson were present. (Doc. 56)
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After considering the evidence and arguments presented during the hearing, the Court
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granted Petitioner's motion for new counsel, terminated Joy Bertrand as counsel and
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appointed David Eisenberg to represent Petitioner for the evidentiary hearing. (Doc. 57)
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On the motion of David Eisenberg, the evidentiary hearing was continued to January 21,
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2011. (Doc. 59)
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On December 21, 2010, Respondents filed a Motion to Dismiss Petitioner's challenge
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to his sentence in CR2003 asserted in Grounds One and Two on the Petition. (Doc. 66)
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Because the Motion to Dismiss was directed to the only issue to be considered at the evidentiary hearing, Petitioner's counsel filed a response to the motion to dismiss. (Doc. 70) Counsel also filed a memorandum pertaining to the evidentiary hearing, in accordance with the Court's orders. (Doc. 68) After the motion to dismiss was fully briefed, on January 14, 2011, the undersigned issued a Report and Recommendation, recommending that Respondents' Motion to Dismiss be granted. (Doc. 76) In view of the recommendation on the Motion to Dismiss, the undersigned vacated the evidentiary hearing and permitted Petitioner's counsel - who had been appointed solely for purposes of that hearing - to withdraw. (Doc. 77) Less then two weeks later, the undersigned issued a Report and Recommendation, recommending that the remaining claims in the Petition for Writ of Habeas Corpus be denied. (Doc. 79)

13 II. Motion to Recuse or Disqualify 14

On March 1, 2011, Petitioner filed the pending motion arguing that the undersigned

15 should recuse, or be disqualified, from this case and that the Reports and Recommendations, 16 docs. 76 and 79, prepared by the undersigned should be stricken. 17 18

A. Relevant Law A party may move to disqualify, or recuse, a judge from presiding in a given case.

19 Motions to disqualify fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C. § 20 455. Section 144 provides for recusal where a party files a timely and sufficient affidavit 21 averring that the judge before whom the matter is pending has a personal bias or prejudice 22 either against the party or in favor of an adverse party. The affidavit must state the facts and 23 reasons for such belief. See 28 U.S.C. § 144.1 A judge finding the motion timely and the 24 25 26 27 28
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Title 28 U.S.C. § 144 reads: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned
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1 affidavits legally sufficient must proceed no further and another judge must be assigned to 2 hear the matter. See id.; United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). 3

On the other hand, § 455 provides broader grounds for disqualification and is

4 self-enforcing on the part of the judge. In particular, § 455 requires a judge to disqualify 5 himself "in any proceeding in which his impartiality might reasonably be questioned," 28 6 U.S.C. § 455(a), including where the judge "has a personal bias or prejudice concerning a 7 party," or when his spouse "is known by the judge to have an interest that could be 8 substantially affected by the outcome of the proceeding." 28 U.S.C. § 455(b)(1), (3). 9

The test for personal bias or prejudice is the same under §§ 144 and 455. Sibla, 624

10 F.2d at 868. Specifically, under both statutes recusal is appropriate where "a reasonable 11 person with knowledge of all the facts would conclude that the judge's impartiality might 12 reasonably be questioned." Pesnell v. Arsenault, 543 F.3d 1038, 1044 (9th Cir. 2008) 13 (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997)). Consequently, 14 recusal will be justified either by actual bias or the appearance of bias. Id. The source of any 15 alleged bias must be extrajudicial. Liteky v. United States, 510 U.S. 540, 544-56 (1994). 16 Judicial bias or prejudice formed during current or prior proceedings is insufficient for 17 recusal unless the judge's actions "display a deep-seated favoritism or antagonism that would 18 make fair judgment impossible." Id. at 541; Pesnell, 543 F.3d at 1044. Judicial rulings will 19 support a motion for recusal only "in the rarest of circumstances." Liteky, 510 U.S. at 555; 20 United States v. Chischilly, 30 F.3d 1144, 1149 (9th Cir. 1994); Mayes v. Leipziger, 729 F.2d 21 22 23 24 25 26 27 28

to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. 28 U.S.C. § 144 (emphasis added).
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1 605, 607 (9th Cir. 1984) (stating that the alleged prejudice must result from an extrajudicial 2 source; a judge's prior adverse ruling is not sufficient cause for recusal). 3 4 5

B. Analysis 1. Role of the undersigned's spouse in underlying matter Petitioner first argues that the undersigned should recuse or be disqualified because

6 his spouse, Aimee Anderson - a Superior Court Judge, Maricopa County, since 2007 - may 7 be affected by this proceeding because, when she was a Superior Court Commissioner, she 8 presided over a May 20, 2004 initial pretrial conference in Petitioner's underlying criminal 9 matter.2 10

At the time the undersigned prepared the Reports and Recommendations on the

11 Petition, he was not personally aware this his spouse had presided over any proceedings 12 pertaining to the underlying criminal action in the Maricopa County Superior Court. Neither 13 Petitioner nor Respondents specifically brought to the undersigned's attention the fact that 14 Judge Aimee Anderson had presided over any proceedings related to this matter. In support 15 of his Motion for recusal, Petitioner has submitted a document entitled "Initial Pretrial 16 Conference" dated May 20, 2004 in State of Arizona v. Carlos Adrian Morley, CR 200217 014160. The Honorable Aimee Anderson, then a Superior Court Commissioner, presided 18 over the initial pretrial conference, but at that time, the case was assigned to Superior Court 19 Judge Schneider. During the initial pretrial conference, Judge Anderson scheduled a final 20 management conference and jury trial before Judge Barry Schneider. She indicated that the 21 estimated length of the trial was eight days, and that the trials would proceed in the following 22 order: "CR2003-021342-001 DT, first" "CR2002-014160, Second." (Doc. 91, Exh. A) 23 Judge Anderson also confirmed a settlement conference for June 11, 2004 before Judge 24 Ronald Reinstein, and set forth the requirements for the final trial management conference 25 26 27 28

From 2001 to 2007, Aimee Anderson was a Commissioner in the Arizona Superior Court, Maricopa County. She has been an Arizona Superior Court Judge, Maricopa County, since 2007.
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1 and the joint pretrial statement. Finally, Judge Anderson affirmed prior custody orders. 2 (Doc. 91, Exh. A) 3

Although Petitioner did not refer to Judge Aimee Anderson or to the May 20, 2004

4 initial pretrial conference in his Petition for Writ of Habeas Corpus or in his Memorandum in 5 Support of Petition for Writ of Habeas Corpus, docs. 1, 4, in his Reply, he mentions that 6 proceeding - but does not refer to Judge Aimee Anderson. (Doc. 36 at 3) Petitioner states: 7 8 9 10 11 12

Please draw your attention to (Exhibit 6) INITIAL PRETRIAL CONFERENCE file dated 5-20-2004[.] On page two line 3 says `The trials for this Defendant shall proceed in the following order: CR2003-021342-001 DT, First; CR2002-014160, Second. The so-called prior felony conviction was to be tried Second. If Petitioner Morley was going to be pleading guilty to CR2003-021342-001 DT with one prior felony conviction, don't you think the INITIAL PRETRIAL CONFERENCE memorandum filed on 5-26-2004 would indicate so?

13 (Doc. 36 at 3, Exh. 6) (emphasis in original) Although Petitioner refers to Initial Pretrial 14 Conference, he does not assert a claim directed to the manner in which Judge Aimee 15 Anderson conducted that proceeding or otherwise challenge her conduct. When reviewing 16 Petitioner's Habeas Corpus Petition, the undersigned deemed Petitioner's argument regarding 17 the sequence of the trials set forth in the Initial Pretrial Conference insignificant. Petitioner 18 did not enter his guilty pleas until several months later, on July 2, 2004. And between the 19 May 20, 2004 Initial Pretrial Conference and Petitioner's July 2, 2004 pleas, a settlement 20 conference was scheduled for June 11, 2004 before Judge Reinstein. In view of the lack of 21 significance assigned to the May 20, 2004 pretrial conference, the undersigned relied on the 22 review of the minute entry of that proceeding, Exhibit 6 to Petitioner's Reply, conducted by 23 his law clerk, and had no occasion to notice Aimee Anderson's name which appears only in 24 the upper left corner of that document. Moreover, even if the undersigned had been 25 personally aware that his spouse had presided over the May 20, 2004 proceeding - or if his 26 law clerk's awareness of that information could be imputed to him - Judge Aimee 27 Anderson's role in the underlying criminal proceeding would not provide a basis for the 28 undersigned's recusal or disqualification. Judge Aimee Anderson's role in the underlying -7-

1 criminal matter was minor. She did not issue any substantive rulings in those proceedings. 2 Rather, her participation was administrative in nature. Although evidence of the May 20, 3 2004 initial pretrial conference was in the record when the undersigned prepared the Reports 4 and Recommendations in this case, the May 20, 2004 proceeding was not relevant to the 5 undersigned's resolution of issues in this case. Moreover, the recommendations in this case 6 will have no impact - positive or negative - on the undersigned's spouse. See 28 U.S.C. § 7 455(b)(1), (3) (stating that a judge should disqualify himself "in any proceeding in which his 8 impartiality might reasonably be questioned," including where the judge's spouse "is known 9 by the judge to have an interest that could be substantially affected by the outcome of the 10 proceeding.") In short, "a reasonable person" with knowledge that the undersigned's spouse 11 played a minor, administrative role in this case when, as a Superior Court Commissioner, she 12 presided over an initial pretrial conference on May 20, 2004, could not conclude that the 13 undersigned's impartiality nearly seven years later might reasonably be questioned. Pesnell, 14 543 F.3d at 1044. Accordingly, the undersigned declines to recuse himself under 28 U.S.C. § 15 455 based on his spouse's limited role in the underlying criminal matter.3 16

The undersigned must also assess the sufficiency of Petitioner's Affidavit and Motion

17 for recusal/disqualification under Title 28 U.S.C. § 144. See Grimes v. U. S., 396 F.2d 331 18 (9th Cir. 1968). Section 144 provides: 19 20 21 22 23 24 25 26 27 28

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be

Petitioner argues that Judge Aimee Anderson's role in his criminal case was tantamount to the undersigned himself having presided over the May 20, 2004 pretrial conference. This argument does not warrant recusal. In United States v. Hamilton, 792 F.2d 837, 839 (9th Cir. 1986), the Ninth Circuit affirmed refusal to recuse where the trial judge stated that he had no recollection of 15-year-old prior proceeding in which defendant had appeared before him and the record contained no evidence of bias or prejudice.
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shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

3 28 U.S.C. § 144 (emphasis added). Section 144 "must be given the utmost of strict 4 construction to safeguard the judiciary from frivolous attacks upon its dignity and integrity . . 5 . and to prevent abuse and to insure orderly functioning of the judicial system . . . ." 6 Rademacher v. City of Phoenix, 442 F.Supp. 27, 29 (D.Ariz. 1977) (internal citations 7 omitted). Plaintiff's Motion and Affidavit for Disqualification is untimely under section 144. 8 Although Petitioner's Petition for Writ of Habeas Corpus did not refer to the May 20, 2004 9 initial pretrial conference, over which Judge Aimee Anderson presided, he refers to that 10 proceeding in his Reply filed on April 30, 2010. (Doc. 36 at 3) Thus, no later than April 30, 11 2010, Petitioner was aware that Judge Aimee Anderson had some involvement in his state 12 criminal proceedings. Despite being aware of Judge Aimee Anderson's involvement in his 13 case no later than April 2010, Petitioner waited until March 1, 2011, eleven months later, 14 and after the undersigned recommended denying his Petition for Writ of Habeas Corpus, to 15 bring the present Motion for Recusal or Disqualification. A "litigant cannot take his chances 16 with a Judge and then, if dissatisfied, secured a disqualification of that Judge and try again in 17 front of another Judge." Rademacher, 442 F.Supp. at 29 (citing Taylor v. U. S., 179 F.2d 640 18 (9th Cir. 1950)). "If the alleged information upon which the Motion for Disqualification is 19 based was known or knowable to the movant a considerable period of time prior to the 20 Motion, then such a Motion is untimely." Id. Petitioner's motion for disqualification 21 pursuant to § 144 based on Judge Aimee Anderson's involvement in the underlying criminal 22 case should be denied as untimely. 23

Moreover, section 144 indicates that when, the "judge before whom the matter is

24 pending has a personal bias or prejudice either against him or in favor of any adverse party," 25 a party seeking to disqualify that judge shall file an affidavit "not less than ten days before 26 the beginning of the term at which the proceeding is to be heard, or good cause shall be 27 shown for failure to file it within such time." 28 U.S.C. § 144. Here, the undersigned issued 28 Reports and Recommendations on the Petition for Writ of Habeas Corpus on January 14 and -9-

1 24, 2011. (Docs. 76, 79) Because this matter was only referred to the undersigned to issue 2 such a Report and Recommendation, after that action was taken, this matter was no longer 3 pending before the undersigned and no further proceedings on this matter were set before the 4 undersigned. 5 6

2. October 16, 2010 hearing Petitioner further argues that the undersigned should recuse or be disqualified because

7 his comments during the October 6, 2010 hearing on Petitioner's Motion to Remove Counsel 8 evidence his bias against Petitioner. 9

To the extent that Petitioner requests recusal based on the undersigned's remarks

10 made during the October 6, 2010 hearing, Petitioner fails to establish cause for recusal under 11 section 455(a) which requires the source of the bias be extra judicial. Liteky, 510 U.S. at 12 544-56. 13

Likewise, "[a]n affidavit filed pursuant to [28 U.S.C. § 144] is not legally sufficient

14 unless it specifically alleges facts that fairly support the contention that the judge exhibits 15 bias or prejudice directed toward a party that stems from an extrajudicial source." U.S. v. 16 Sibla, 624 F.2d 864, 868 (9th Cir. 1980) (emphasis added). Petitioner fails to present 17 sufficient facts to support his assertion under section 144 that the undersigned judge 18 exhibited bias or prejudice toward Petitioner stemming from any extrajudicial source. 19 Rather, Petitioner's arguments regarding the October 6, 2010 hearing are based solely on the 20 undersigned's comments. Judicial bias or prejudice formed during current or prior 21 proceedings is insufficient for recusal unless the judge's actions "display a deep-seated 22 favoritism or antagonism that would make fair judgment impossible."Liteky, 510 U.S. 540 at 23 541. Even "judicial remarks during the course of a trial that are critical or disapproving of or 24 even hostile to counsel, the parties or their cases, ordinarily do not support a bias or partiality 25 challenge," and will do so only where "they reveal such a high degree of favoritism or 26 antagonism as to make fair judgment impossible." Id. at 555; see e.g., Berger v. United 27 States, 255 U.S. 22, 28 (1921) (finding disqualification proper where district judge presiding 28 over case against German-American defendants stated: "One must have a very judicial mind, - 10 -

1 indeed, not to be prejudiced against the German-Americans in this country[;] their hearts are 2 reeking with disloyalty."). 3

As previously stated, on October 6, 2010, the undersigned conducted a hearing

4 regarding Petitioner's Motion to Remove Counsel and Appoint New Counsel. Petitioner 5 sought to remove his counsel at the time, Joy Bertrand. There is no right to have counsel 6 appointed in cases brought under 28 U.S.C. § 2254 unless an evidentiary hearing is required, 7 because the action is civil, not criminal, in nature. See Terravona v. Kincheloe, 852 F.2d 424, 8 429 (9th Cir. 1988); Brown v. Vasquez, 952 F.2d 1164, 1168 (9th Cir. 1992); and Rule 8(c) 9 of the Rules Governing Section 2254 Cases. Because an evidentiary hearing was scheduled, 10 the undersigned had appointed Petitioner pursuant to Rule 8(c). In the motion to substitute 11 counsel, Petitioner argued that his case was being handled by Jameson Johnson, a paralegal, 12 and that he was not initially informed that Mr. Johnson was a paralegal and not a licensed 13 attorney. Petitioner was concerned that his attorney-client privilege had been breached. 14

Unable to find controlling authority articulating the factors to consider when ruling on

15 a motion to substitute counsel appointed for an evidentiary hearing in a § 2254 case, a civil 16 proceeding in which petitioner has no Sixth Amendment right to counsel,4 the undersigned 17 relied on case law pertaining to the substitution on counsel in other contexts. In the context 18 of a criminal prosecution, the Ninth Circuit has stated that when considering a motion to 19 substitute counsel due to an irreconcilable conflict, the court must conduct "such necessary 20 inquiry as might ease the defendant's dissatisfaction, distrust, and concern." United States v. 21 Garcia, 924 F.2d 925, 926 (9th Cir. 1991). Thus, during the October 6, 2010 hearing, the 22 undersigned tried to determine whether the relationship between Petitioner and Ms. Bertrand 23 had deteriorated to the point where she should be removed and Petitioner assigned a different 24 attorney for purposes of the evidentiary hearing that was still scheduled at that time. 25 26 27 28 - 11 -

A state prisoner who brings a habeas action under 28 U.S.C. § 2254 has no constitutional right to counsel. Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1991).

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Petitioner argues that the undersigned prevented him from speaking a few times,

2 "alluded to . . .Petitioner Morley . . . being a Racist," accused Petitioner of being a "difficult 3 client," and used the hearing "to reprimand Petitioner." (Doc. 91 at 4) The record reflects 4 that a few times when Petitioner's comments strayed from the point, the undersigned 5 redirected the Petitioner. (Doc. 91, Exh. B at 3, 14) Additionally, when delving into 6 Petitioner's concerns regarding Mr. Johnson's participation in his representation, the 7 undersigned raised the issue of Mr. Johnson's race, but quickly moved on from that issue 8 when Petitioner assured the Court that race was not an issue. (Doc. 91, Exh. B at 11-12) 9 Such inquiry was appropriate to understand the source of Petitioner's "dissatisfaction" and 10 "distrust" of counsel. Garcia, 924 F.2d at 926; see also United States v. Adelzo-Gonzalez, 11 268 F.3d 772, (9th Cir. 2001) (stating that "in most circumstances a court can only ascertain 12 the extent of a breakdown in communication by asking specific and targeted questions."). 13

During the hearing, Petitioner indicated that he wanted Ms. Bertrand to raise issues

14 during the scheduled evidentiary hearing in addition to the single issue that had been 15 identified for the hearing. (Doc. 91, Exh. B at 13) It became apparent that counsel and 16 Petitioner had opposing views regarding the scope of her representation and they could not 17 communicate effectively. (Doc. 91, Exh. B at 8-9, 13, 15, 18) In that context, the 18 undersigned stated "[h]ave I hit the nail on the head or have I missed it that Mr. Morley is a 19 difficult, challenging client." (Doc. 91, Exh. B at 15) Because "`a serious breakdown in 20 communication can result in . . . inadequate'" representation, the undersigned fully explored 21 the state of the relationship between Petitioner and Ms. Bertrand. See United States v. 22 Adelzo-Gonzalez, 268 F.3d at 778 (quoting United States v. Musa, 220 F.3d 1096, 1102 (9th 23 Cir. 2000)). Whether Petitioner was a difficult or challenging client was relevant to that 24 assessment, and the undersigned's comment to that effect does not indicate bias but, rather, 25 the undersigned's efforts to fully explore the "depth of any conflict between [Petitioner] and 26 counsel, [and] the extent of any breakdown in communication. . . ." Adelzo-Gonzalez, 268 27 F.3d at 777 (citing United States v. D'Amore, 56 F.3d 1204, 1205 (9th Cir. 1995), overruled 28 on other grounds by United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999) (en banc)). - 12 -

1 Additionally, "expressions of impatience, dissatisfaction, annoyance, and even anger" are not 2 grounds for establishing bias or impartiality, nor are a judge's efforts at courtroom 3 administration. Liteky, 510 U.S. at 555-56. 4

After hearing from Petitioner, Jameson Johnson, and Joy Bertrand, the Court granted

5 Petitioner's motion to remove Joy Bertrand as counsel. (Doc. 91, Exh. B at 20) The Court 6 then "[r]eluctantly" gave Petitioner a new attorney for purposes of the evidentiary hearing. 7 (Id.) The undersigned told Petitioner that "[y]ou need to follow your lawyer's advice," and 8 warned him that "[t]here won't be a third lawyer." (Doc. 91, Exh. B at 21) Petitioner argues 9 that those comments reflect bias. Rather than reflecting bias, the undersigned was merely 10 trying to encourage Petitioner to cooperate with the next attorney who was appointed to assist 11 him with the evidentiary hearing. The undersigned wanted to underscore the importance of 12 Petitioner collaborating with counsel, rather than challenging counsel and insisting that 13 counsel expand his or her role beyond the parameters set by the Court's order regarding the 14 evidentiary hearing - as he had done with Ms. Bertrand. The undersigned's comments during 15 the October 6, 2010 hearing do not "display a deep-seated favoritism or antagonism that 16 would make fair judgment impossible." Id. at 541; Pesnell, 543 F.3d at 1044. 17

The undersigned must also determine whether Petitioner's Affidavit and Motion for

18 recusal/disqualification is timely under § 144. See Grimes v. U. S., 396 F.2d 331 (9th Cir. 19 1968). Section 144 "must be given the utmost of strict construction to safeguard the 20 judiciary from frivolous attacks upon its dignity and integrity . . . and to prevent abuse and to 21 insure orderly functioning of the judicial system . . . ." Rademacher v. City of Phoenix, 442 22 F.Supp. 27, 29 (D.Ariz. 1977) (internal citations omitted). Petitioner's allegation that the 23 undersigned was biased based on the October 6, 2010 hearing is also untimely. Although 24 Petitioner did not receive a transcript of that proceeding until January 21, 2011, Petitioner 25 was present during that proceeding and could have described the undersigned's comments 26 from memory. Petitioner, however, waited until after the undersigned issued Reports and 27 Recommendations recommending denying habeas corpus relief to raise the issue of bias. A 28 "litigant cannot take his chances with a Judge and then, if dissatisfied, secured a - 13 -

1 disqualification of that Judge and try again in front of another Judge." Rademacher, 442 2 F.Supp. at 29 (citing Taylor v. U. S., 179 F.2d 640 (9th Cir. 1950)). "If the alleged 3 information upon which the Motion for Disqualification is based was known or knowable to 4 the movant a considerable period of time prior to the Motion, then such a Motion is 5 untimely." Id. 6 III. "Rule 25" and "U.S.C. §§ 8093" 7

In the caption of his Motion, Petitioner refers to "Rule 25" and "U.S.C. §§ 8093."

8 Although Petitioner neither specifically identifies the Rule and statute to which he refers, nor 9 discusses them in the body of his motion, the undersigned - in an abundance of caution - will 10 consider whether recusal or disqualification is required by under either "Rule 25" or "U.S.C. 11 §§ 8093." 12

With respect to "Rule 25," Petitioner may be referring to Federal Rule of Criminal

13 Procedure 25(b) which allows for the recusal and replacement of a district judge presiding 14 over a criminal proceeding. The Federal Rules of Criminal Procedure, however, do not apply 15 to this civil proceeding. 16

Petitioner may also be referring to Rule 25 of the Rules for Judicial-Conduct and

17 Judicial- Disability Proceedings, adopted by the Judicial Conference of the United States on 18 March 11, 2008. "These rules govern proceedings under The Judicial Conduct and Disability 19 Act, 28 U.S.C. §§ 351-364 (the Act), to determine whether a covered judge has engaged in 20 conduct prejudicial to the effective and expeditious administration of the business of the 21 courts . . . ." Rule 1, Rules of Judicial-Conduct and Judicial Disability Proceedings; 28 22 U.S.C. § 351. In pertinent part, Rule 25 provides that a judge who is subject of a complaint 23 filed under the Act, "is disqualified from considering the complaint . . . ." Petitioner may cite 24 Rule 25 for the proposition that the undersigned should be disqualified from considering 25 Petitioner's request that the undersigned recuse or be disqualified from this § 2254 matter. 26

Rule 25, however, does not apply to this case. First, Petitioner is not proceeding

27 under 28 U.S.C. § 351-364. Moreover, because proceedings pursuant to 28 U.S.C. § 351-364 28 must be "filed with the circuit clerk in the jurisdiction in which the subject judge holds - 14 -

1 office," in this case the Ninth Circuit Court of Appeals, the governing Rules do not apply to 2 the action pending in this Court. See 28 U.S.C. § 351(a); Rules for Judicial-Conduct and 3 Judicial-Disability Proceedings, Rule 7(a)(1). 4

Finally, Petitioner cites to "U.S.C. §§ 8093" in the caption of his Petition for Recusal.

5 (Doc. 91) The undersigned cannot determine the precise portion of the United States Code to 6 which Petitioner is referring. Regardless, the undersigned has fully considered Petitioner's 7 arguments in support of his request that the undersigned recuse, or be disqualified, from this 8 matter and has found no support for that request. 9 III. Summary 10

In summary, Petitioner appears unhappy with the undersigned's reports and

11 recommendations in this case. The undersigned's recommendations, however, do not 12 provide a basis for recusal or disqualification. See Liteky, 510 U.S. at 555 (stating that 13 judicial rulings will support a motion for recusal only "in the rarest of circumstances."); 14 United States v. Chischilly, 30 F.3d 1144, 1149 (9th Cir. 1994). Additionally, the 15 undersigned's relationship to the Honorable Aimee Anderson and comments during the 16 October 6, 2010 hearing do not require recusal or disqualification on the facts of this case. 17 Accordingly, the undersigned declines to recuse under 28 U.S.C. § 455, and finds Petitioner's 18 motion and affidavit insufficient to warrant forwarding this matter to another judge for 19 further review pursuant to 28 U.S.C. § 144. See Sibla, 624 F.2d at 867; 28 U.S.C. § 144. 20 21

Accordingly, IT IS ORDERED that Petitioner's Petition for Recusal of Magistrate Judge, doc. 91,

22 is DENIED. 23 24 25 26 27 28 - 15 -

DATED this 14th day of March, 2011.