Tsosie v. United States of America

Filing 14

ORDER that the reference to the Magistrate Judge is withdrawn as to Movant's Motions (Doc. 8 & 9); that Movant's Motions (Doc. 8 & 9 ) to disqualify are denied. Signed by Judge Earl H Carroll on 12/27/10. (ESL)

-JRI Tsosie v. United States of America

Doc. 14

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

9 United States of America, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

vs.

Plaintiff,

Ronald Lee Tsosie, Defendant/Movant.

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No. CV 10-8095-PCT-EHC (JRI) No. CR 94-031-PCT-EHC ORDER

In these proceedings under 28 U.S.C. § 2255, Defendant/Movant ("Movant") filed two Motions (Doc. 8 & 9) on October 8, 2010 requesting that the Court be disqualified from the case. The two Motions appear to be basically the same. The reference to the Magistrate Judge is withdrawn as to Movant's Motions (Doc. 8 & 9). The Court has considered Movant's Motions under 28 U.S.C. § 455(a) or (b)(1). Section 455(a) provides that a United States judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455(b)(1) provides that a judge must also disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]" Recusal under § 455(a) and (b)(1) is required only if the bias or prejudice stems from an extrajudicial source, not from conduct or rulings during the course of proceedings. See Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff'd, 496 U.S. 543 (1990). The alleged grounds discussed in Movant's Motions concern conduct or rulings during the course of the criminal proceedings (see Doc. 4 - Exhibit A (United States v. Ronald Lee

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Tsosie, No. 95-10068 (9th Cir. April 5, 1996)(Memorandum at 1-5)). The grounds asserted are not a basis for disqualification. Accordingly, IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to Movant's Motions (Doc. 8 & 9). IT IS FURTHER ORDERED that Movant's Motions (Doc. 8 & 9) to disqualify are denied. DATED this 27th day of December, 2010.

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