Meisner v. United States of America

Filing 19

ORDER that to the extent that any relief is sought in Movant's 17 Addendum, such relief is denied. Signed by Judge David G Campbell on 05/23/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
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Plaintiff,
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v.
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Eric John Meisner,
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Defendant/Movant.
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No. CR 04-1073-PCT-DGC
No. CV 07-8162-PCT-DGC (ECV)
ORDER

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Movant Eric John Meisner, who was then-confined in FCI Fairton, in Fairton, New

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Jersey, filed a pro se “Motion Under 28 USC § 2255 to Vacate, Set Aside or Correct

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Sentence by a Person in Federal Custody,” which the Court dismissed as premature because

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his direct criminal appeal was then, and remains, pending.1

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subsequently denied various miscellaneous motions. (Doc. 5-7, 8-9, 10.) Movant filed a

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notice of appeal from the denial of those motions in the Ninth Circuit Court of Appeals, No.

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08-17724. (Doc. 11.) On December 18, 2009, the Ninth Circuit dismissed the appeal

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pursuant to Movant’s motion for voluntary dismissal of the appeal. Meisner, No. 08-17724

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(9th Cir. Dec. 18, 2009) (Order granting appellant’s motion to dismiss appeal).

(Doc. 2.)2

The Court

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On March 25, 2011, Movant filed a document in this case captioned as “Addendum

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to the Writ of Habeas Corpus Pursuant to Rule 60(b)(4) and Motion to Recuse Pursuant to

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Briefing of Movant’s appeal has been delayed by multiple changes of appellate

counsel.
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“Crim. Doc.” refers to the docket number of filings in the criminal case. “Doc.”
refers to the docket number of filings in the civil case.

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Supreme Law and 28 U.S.C. § 455 and Declaratory Relief Pursuant to Rule 57 and 28 U.S.C.

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§ 2201.”

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reconsideration of the dismissal of his § 2255 motion as premature. To the extent that any

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relief is sought in the Addendum, such relief will be denied.

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I.

(Doc. 17.)

In this document, Movant seeks recusal of the Court and

Recusal Request

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Under federal law, a United States judge “shall disqualify himself in any proceeding

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in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Further, a

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judge “shall disqualify himself” where he “has a personal bias or prejudice concerning a

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party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]”3

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28 U.S.C. § 455(b)(1). Recusal pursuant to § 455(b) is required only if the bias or prejudice

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stems from an extra-judicial source rather than from conduct or rulings during the course of

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the proceedings. See Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff’d,

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496 U.S. 543 (1990); United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (judge’s

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prior adverse rulings are insufficient cause for recusal). “[J]udicial rulings alone almost

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never constitute [a] valid basis for a bias or partiality motion.” Liteky v. United States, 114

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S.Ct. 1147, 1157 (1994). Adverse rulings should be appealed; they do not form the basis for

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a recusal motion. Further, where the judge forms opinions in the courtroom, either in the

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current proceeding or in a prior proceeding, these opinions “do not constitute a basis for a

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bias or partiality motion unless they display a deep-seated favoritism or antagonism that

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would make fair judgment impossible.” Id.

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Movant fails to allege or show any basis for recusal under § 455 other than this

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Court’s rulings in this and his criminal case. That is not a basis upon which the Court’s

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impartiality might reasonably be questioned for purposes of § 455(a). Movant also has not

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alleged or shown that the Court has a personal bias or prejudice concerning Movant or other

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potential parties to this action or personal knowledge of disputed evidentiary facts concerning

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this proceeding. The Court therefore finds that recusal is not warranted pursuant to § 455.

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Other grounds for recusal, such as prior representation for or against a litigant, or
financial interest in the subject matter, do not apply as to this case.
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II.

Reconsideration

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Movant seeks reconsideration of the dismissal of his § 2255 motion as premature and

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other rulings in this civil and criminal case. Generally, motions to reconsider are appropriate

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only if the Court “(1) is presented with newly discovered evidence, (2) committed clear error

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or the initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255,

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1263 (9th Cir. 1993). A motion for reconsideration should not be used to ask a court “to

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rethink what the court had already thought through, rightly or wrongly.” Above the Belt, Inc.

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v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rather, such arguments

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should be directed to the court of appeals. Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp.

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305, 309 (D. Ariz. 1992).

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Movant in part seeks reconsideration on the grounds that the Court previously

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construed various motions filed by him as motions for reconsideration in the criminal case,

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Crim. Doc. 121, 126, 129, 130, 139, or the civil case, Doc. 7, 10, in violation of Castro v.

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United States, 540 U.S. 375 (2003). Castro holds that when a district court recharacterizes

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a pro se litigant’s filings as a motion to vacate pursuant to 28 U.S.C. § 2255, the court must

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“notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that

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this recharacterization means that any subsequent § 2255 motion will be subject to the

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restrictions on ‘second and successive’ motions, and provide the litigant an opportunity to

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withdraw the [filing] or to amend it so that it contains all the § 2255 claims he believes he

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has.” Castro, 540 U.S. at 383. Castro does not apply to the construction of filings as motions

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for reconsideration.4 Accordingly, this affords no basis for reconsideration.

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Movant otherwise essentially seeks to challenge the dismissal of his § 2255 motion

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as premature while his appeal is pending. Movant asserts that extraordinary grounds make

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this Court’s reconsideration of that dismissal appropriate. Movant is mistaken. As the Court

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previously stated, and as is still the case, his § 2255 motion was premature and such motion

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Further, the second or successive bar will not apply to a new § 2255 motion filed
by Movant where his first motion was dismissed as prematurely filed.
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remains premature while his appeal is pending. Movant has not otherwise shown newly

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discovered evidence, that the Court committed clear error, that its previous decision was

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manifestly unjust, or that there has been an intervening change in controlling law in

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connection with those orders. To the extent that Movant seeks any relief in his Addendum,

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such relief will be denied.

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IT IS ORDERED that to the extent that any relief is sought in Movant’s Addendum,
doc. 17, such relief is denied.
DATED this 23rd day of May, 2011.

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