Jared Martin v. R. Fisher, Jr
Filing
19
ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY JUDGES MICHAEL F. FITZGERALD AND MARIA A. AUDERO MADE PURSUANT TO 28 USC 144 14 by Judge Otis D. Wright, II (lc)
O
1
2
3
4
5
6
7
United States District Court
Central District of California
8
9
10
Case № 2:20-cv-09527-MWF-MAA
ORDER DENYING PLAINTIFF’S
MOTION TO DISQUALIFY JUDGES
MICHAEL F. FITZGERALD AND MARIA
A. AUDERO MADE PURSUANT TO 28
U.S.C. §§ 144 [DE‐14.]
JARED MARTIN
11
Petitioner,
12
vs.
13
14
R. FISHER, JR.,
15
16
17
Respondent.
_______________________________
18
19
I.
INTRODUCTION
On September 28, 2020 Petitioner, in pro se, filed a Petition for Writ of
Habeas Corpus by One in State Custody pursuant to 28 U.S.C.§ 2254. [DE‐1]. In
general, Petitioner alleged prosecutorial misconduct in pursuing a case with no
victims or complaining witnesses, he contends he is actually innocent, his guilty plea
(actually nolo contender) was entered due to ineffective assistance of his counsel
who tricked him into admitting his guilt. Id. On October 21, 2020 the matter was
referred to the calendar of Judge Michael W. Fitzgerald and Magistrate Judge Maria
A. Audero [DE‐3].
1
On November 5, 2020 Magistrate Judge Audero issued a detailed Minute
2
Order reciting a number of procedural issues with the Petition which required
3
resolution before the Court could proceed. An OSC was issued which required a
4
response from Petitioner on or before December 7, 2020. [DE‐5].
5
6
7
8
9
10
On November 30, 2020, Petitioner filed a Motion to Transfer/Disqualify
Magistrate Judge, Response to the OSC, Statement of Facts, Request for Remedy,
etc. [DE‐6.]. The Motion to Disqualify was originally, and in error, assigned to Judge
James Fitzgerald [DE‐15] but subsequently transferred to this Court for resolution.
[DE‐18.]1
11
On January 6, 2021 Petitioner filed an Affidavit of Bias and Prejudice as part of
12
his Motion to “Disqualify Judge and Judge Magistrate.” [DE‐14.] It is that filing to
13
which this Court responds.
14
15
16
17
18
19
20
21
22
23
24
25
26
II. LEGAL STANDARD
There are two federal statutes enacted to assure that litigants receive a fair
trial before an impartial judge, 28 U.S.C.§§144 and 455. Section 455 provides that
any judge shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned. The section also provides specific examples of situations
where a judge’s impartiality might be questioned, for example when the judge might
have a financial interest that could be affected by the outcome of the matter, or
circumstances that if known, might cause a reasonable person to question the
judge’s impartiality. No facts have been alleged which might give rise to the
application of section 455.
Section 144 provides: “Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the judge before whom the
27
1
28
Prior to the matter being reassigned to this Court for resolution of the disqualification motion, Judge Fitzgerald issued a
Minute Order denying the motion. That Motion has not been withdrawn. Because the motion has been enlarged to
include Judge Fitzgerald, section 455 mandates that the motion be addressed by a different judge.
2
1
matter is pending has a personal bias or prejudice either against him or in favor of
2
any adverse party, such judge shall proceed no further therein, but another judge
3
shall be assigned to hear such proceeding.”
4
5
prejudice exists, and shall be filed not less than ten days before the beginning of the
6
term at which the proceeding is to be heard, or good cause shall be shown for failure
7
to file it within such time. A party may file only one such affidavit in any case. It shall
8
be accompanied by a certificate of counsel of record stating that it is made in good
9
faith.” (Emphasis added.).
“The affidavit shall state the facts and the reasons for the belief that bias or
10
Here, the affidavit follows the motion to which it is addressed by five weeks,
11
but nonetheless will be considered as though the motion is brought under section
12
144. It is in the area of “facts” that the affidavit is woefully inadequate.
13
III.
NO BASIS FOR RECUSAL HAS BEEN STATED
14
The Motion is a model of brevity, perhaps too much so. Petitioner would be
15
forgiven for expending a few more pages of explanation so as to informed the Court
16
of the factual basis for the motion and the facts which have led Petitioner to
17
conclude the magistrate and trial judges are biased against him.
18
“An affidavit filed pursuant to [Section 144] is not legally sufficient unless it
19
specifically alleges facts that fairly support the contention that the judge exhibits bias
20
or prejudice directed toward a party that stems from an extrajudicial source. See
21
Carignan, 600 F.2d 762; Azhocar, 581 F.2d 735, 738‐40. The motion and affidavit
22
filed by Petitioner Martin contain only his conclusions and are devoid of specific fact
23
allegations tending to show personal bias stemming from an extrajudicial source.
24
Consequently, the district judge correctly rejected the motion and affidavit as legally
25
insufficient. See id.; (Bennett, 539 F.2d at 51.).” U.S. vs. Sigla 624 F.2d 864, 868.
26
(Emphasis added.)
27
It is against this standard that Petitioner’s Affidavit is measured. Petitioner
28
supports his Affidavit of bias by recounting a number of alleged mistakes Judge
3
1
Audero made in her Minute Order of November 5, 2020. [DE‐5]. He alleges Judge
2
Audero made a number of factual mistakes in reciting the procedural history of the
3
case. Those facts were taken from the Los Angeles Superior Court’s docket.
4
Petitioner provides no information why the facts as alleged in the Minute Order are
5
erroneous. But on the issue of bias, Petitioner cites the purported mistakes as
6
evidence, indeed his only evidence of bias, on the part of not only Judge Audero, but
7
apparently Judge Fitzgerald as well. While no mention was made of Judge Fitzgerald
8
in his original motion, he has included the trial judge in his affidavit. Because of his
9
pro se status, the Court will consider the motion to disqualify as directed at both.
10
The affidavit of bias is clearly a response to Petitioner’s dissatisfaction with
11
Judge Audero’s OSC and apparently, one might surmise, with Judge Fitzgerald’s
12
Order denying the recusal motion. Judicial rulings alone almost never constitute a
13
valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S.,
14
at 583, 86 S.Ct., at 1710. In and of themselves (i.e., apart from surrounding
15
comments or accompanying opinion), they cannot possibly show reliance upon an
16
extrajudicial source; and can only in the rarest circumstances evidence the degree of
17
favoritism or antagonism required (. . .) when no extrajudicial source is involved.
18
Almost invariably, they are proper grounds for appeal, not for recusal. Second,
19
opinions formed by the judge on the basis of facts introduced or events occurring in
20
the course of the current proceedings, or of prior proceedings, do not constitute a
21
basis for a bias or partiality motion unless they display a deep‐seated favoritism or
22
antagonism that would make fair judgment impossible. Liteky v. United States, 510
23
U.S. 540,555 114 S.Ct. 1147, 1157. (1994)
24
As almost an afterthought, Petitioner has sprinkled in a reference or two to
25
racial prejudice. Unexplained is how either judge would be aware of Petitioner’s
26
race. No hearings had been set in the case therefore it is unclear how either judge
27
would have actually seen Petitioner. Though not clearly stated, it is implied that the
28
rulings made by the judges, with which he disagrees, were motivated by
4
1
considerations of Petitioner’s race. Mere conclusory allegations do not suffice,
2
[Liteky v. U.S., 510 U.S. 540, 114 S.Ct. 1147(1994)] nor will rumors or gossip, [510
3
U.S. at 554, 114 S. Ct. at 1157] although the facts may be stated on information and
4
belief. The facts stated “must give fair support to the charge of a bent of mind that
5
may prevent or impede impartiality of judgment.” Id. Here, no reasons have been
6
given to challenge either judge’s ability to be fair and impartial, and this Court is in
7
no position to evaluate the merits of Petitioner’s request for reassignment.
8
Therefore, this Court has no option other than to find the request lacks merit.
9
IV. CONCLUSION
10
In the final analysis, the Court is unable to articulate a logical reason to
11
12
conclude there exists any level of bias against Petitioner or favoritism towards
13
another party to the instant litigation. Frankly, attempting to construct a rational
14
argument as to why a judge cannot be impartial in a case is not the role of the Court,
15
16
17
18
19
but a burden which must be shouldered by the party bringing the motion to
disqualify. (28 U.S.C. § 144.) Here, Petitioner has not met that burden.
///
///
20
///
21
///
22
///
23
///
24
25
26
27
///
Nothing constructive can come of characterizing the instant motion. Suffice it
to say that disconnected conclusory assertions of bias, with literally no factual
28
5
1
support, are insufficient to convince this Court that a prima facie case of bias has
2
been made. For that reason, the motion is DENIED.
3
IT IS SO ORDERED.
DATED: January 25, 2021
4
5
6
7
8
_________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?