Russell v. Kelley

Filing 46

ORDER denying 45 Motion as both untimely and meritless. Signed by Judge D. P. Marshall Jr. on 11/5/2018. (jak)

IN THE UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROY LEE RUSSELL
ADC #087075

PETITIONER
No. 5:16-cv-188-DPM

v.

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
1. Russell filed his habeas petition in this case in June of 2016.

The case was referred to a United States Magistrate Judge. FED. R.
CIV. P. 72; LOCAL RULE 72.l(VIll)(B). Over the course of almost two
years, the Magistrate Judge handled several nondispositive motions.

Ng 5, 9, 15 & 29. He also responded to Russell's repeated requests for
status updates. NQ 17, 21, 23 & 2 7. Earlier this year, the Magistrate
Judge submitted a thorough recommendation. He analyzed Russell's
many claims and recommended that the petition be dismissed with
prejudice.

NQ 30.

Russell filed lengthy objections.

NQ 31.

After

reviewing the record de nova, this Court adopted the recommendation
with a supplement and dismissed Russell's petition with prejudice.

NQ 32 & Ng 33. Russell then moved for relief from the Judgment.
Ng 34. The Court denied the motion. Ng 36. Russell appealed; and

that appeal is pending before the United States Court of Appeals for
the Eighth Circuit. NQ 38 & NQ 41.
In October, Russell filed a letter raising a new issue: about ten
years ago, the Magistrate Judge was Russell's lawyer in an unrelated
revocation proceeding in federal court.

JMM.

NQ 45; Case NQ 4:99-cr-54-

Russell now says that the Magistrate Judge "displayed

favoritism against or antagonism toward" him and should have
recused.

NQ 45.

The Court construes Russell's letter as another

motion for relief from the Judgment. FED. R. CIV. P. 60(b)(6). Though
Russell's appeal is still pending, this Court has jurisdiction to consider
the motion. Pioneer Insurance Company v. Celt, 558 F.2d 1303, 1311-12
(8th Cir. 1977).
2. This isn't a mandatory-disqualification case.
Magistrate Judge

previously

represented

Russell,

Although the
that earlier

proceeding wasn't related to this case. 28 U.S.C. § 455(b)(3). Indeed,
the revocation happened several years before the crimes at issue in
this habeas case occurred.
Because there was no basis for mandatory disqualification,
whether to recuse was within the Magistrate Judge's sound discretion.

Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002). The law presumes
his impartiality.

United States v. Denton, 434 F.3d 1004, 1111 (8th

Cir. 2006). Russell believes the Magistrate Judge showed partiality by
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ruling against him.

But adverse rulings are grounds for an

appeal-not recusal. Dossett v. First State Bank, 399 F.3d 940, 953 (8th
Cir. 2005). Nothing in the record shows "a deep-seated favoritism or
antagonism that would make fair judgment impossible."

Liteky v.

United States, 510 U.S. 540, 555 (1994) .

Russell's motion is also untimely.

It falls, if anywhere, in

Rule 60(b)(6)'s catch-all provision. A motion under that subsection
must be made within a reasonable time after the judgment is entered.
FED. R. CIV. P. 60(b)(c)(l).

"What constitutes a reasonable time is

dependent on the particular facts of the case in question[.]" Watkins v.
Lundell, 169 F.3d 540, 544 (8th Cir. 1999). Russell filed his motion

about four months after this Court entered the Judgment. NQ 33. He
could have raised the prior-representation issue at any point after he
filed his petition, and it was randomly assigned to the Magistrate
Judge, in June of 2016. Instead, Russell waited for more than two
years - until the Magistrate Judge had issued an unfavorable
recommendation, until this Court had adopted that recommendation,
and until his first motion for relief from the Judgment was denied. In
the circumstances, that was unreasonable.

*

*

*

Russell's motion, NQ 45, is both untimely and meritless.
therefore denied.
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It is

So Ordered.
D .P. Marshall Jr.
United States District Judge

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