Todd Giffen v. Obama et al
Filing
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ORDER Denying 20 Motion to Reconsider Dismissal of Petition, Motion to Reconsider the Denial of Appointment of Counsel, and Motion to Recuse, signed by District Judge Lawrence J. O'Neill on 02/04/15. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TODD GIFFEN,
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Case No. 1:14-cv-01280-LJO-SAB-HC
Petitioner,
ORDER DENYING MOTION FOR TO
RECONSIDER DISMISSAL OF PETITION,
MOTION TO RECONSIDER THE DENIAL
OF APPOINTMENT OF COUNSEL, AND
MOTION TO RECUSE
v.
BARACK OBAMA, et al.,
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Respondents.
(ECF No. 20)
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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
18 U.S.C. § 2241.
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On October 22, 2014, the assigned Magistrate Judge issued a Findings and
20 Recommendation that recommended that the petition be dismissed as frivolous. On December
21 11, 2014, the undersigned adopted the Findings and Recommendation, and the petition was
22 dismissed as frivolous.
On December 24, 2014, Petitioner filed the instant motion for
23 reconsideration.
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I.
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DISCUSSION
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A. Motion for Reconsideration of Dismissal of Petition
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Petitioner has not indicated whether he is seeking a motion to alter or amend judgment
28 under Federal Rules of Civil Procedure § 59(e) or a motion for relief from judgment or order
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1 under Federal Rules of Civil Procedure § 60(b).
Therefore, the Court will discuss both
2 standards.
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Rule 59(e) of the Federal Rules of Civil Procedure provides that “[a] motion to alter or
4 amend a judgment must be filed no later than 28 days after the entry of the judgment.” Common
5 grounds for a court to grant a motion to alter or amend judgment include newly discovered
6 evidence, the district court committed clear error or its initial decision was manifestly unjust, or
7 there was an intervening change in controlling law. See School Dist. No. 1J, Multnomah
8 County, Or. V. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); McDowell v. Calderon, 197
9 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc). However, a motion to alter or amend the
10 judgment must be filed “no later than 10 days after the entry of the judgment.” Fed. R. Civ. P.
11 59(e). Here, Petitioner filed his motion for reconsideration thirteen days after the entry of the
12 judgment, and therefore, he did not file his motion for reconsideration within the appropriate 10
13 day timeframe under Fed. R. Civ. P. 59(e). Thus, Petitioner is not entitled to relief under Fed. R.
14 Civ. P. 59(e).
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Rule 60(b) of the Federal Rules of Civil Procedure provides:
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On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
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Petitioner’s arguments do not merit reconsideration of the dismissal. Petitioner contends
25 the Court did not properly review his claims. In support of his motion for reconsideration,
26 Petitioner provided the Court with seven exhibits: the brief that his attorney in Oregon submitted
27 in support of his appeal in Oregon, the trial briefings in Petitioner’s Oregon habeas corpus
28 matter, Myron May’s letter dated November 17, 2014, a letter on targeted individuals which
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1 Petitioner states was written by Myron May, NBCNews.com articles on the Myron May and the
2 Ismaaiyl Brinsley shootings, a print out of Petitioner’s website discussing Myron May, and Jim
3 Fetzer’s article in the February 20, 2003, edition of Reader Weekly about electromagnetic pulse
4 weaponry and Paul Wellstone’s plane crash.
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Petitioner’s exhibits are articles and briefs that do not provide credible support for his
6 claim that he has suffered an electromagnetic weapon attack. Petitioner’s brief to the Oregon
7 Court of Appeals is merely his brief requesting the Court reverse the trial court’s denial of his
8 habeas petition, and does not provide any actual support for his claims in his federal habeas
9 petition. Petitioner appears to try to draw parallels between his case and the Myron May
10 shooting, but the news article does not provide any support for Petitioner’s claims. Petitioner’s
11 website and writings do not provide support for his claims. Jim Fetzer’s article merely states his
12 theories based on rumors about electromagnetic pulse weaponry causing Paul Wellstone’s plane
13 crash, and does not provide any support or connection that Petitioner is actually suffering from
14 an electromagnetic attack by the government. When the Court considers Petitioner’s exhibits in
15 support of his motion for reconsideration in conjunction with his lodged documents in support of
16 the Petition and his other filings, the Court does not find that there is sufficient evidence to
17 indicate that Petitioner suffered an electromagnetic weapon attack by the United States
18 government. Therefore, Petitioner’s motion for reconsideration of the dismissal of his petition
19 must be denied.
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B. Motion for Reconsideration of Denial of Appointment of Counsel
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Petitioner also requested reconsideration of the Court’s denial of his motion for
22 appointment of counsel. There currently exists no absolute right to appointment of counsel in
23 habeas proceedings. See e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied,
24 358 U.S. 889 (1958); Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469 U.S. 823
25 (1984). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the
26 case “if the interests of justice so require.” See Rule 8(c), Rules Governing Section 2254 Cases.
27 Petitioner has provided no support that the Court erred in denying his request for the
28 appointment of counsel. In addition, the Court does not find that the interests of justice would be
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1 served by the appointment of counsel at the present time. Furthermore, the Petition has been
2 dismissed and the motion for reconsideration is denied, so there are no pending matters in this
3 case.
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C. Motion to Recuse
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As part of Petitioner’s motion for reconsideration, he requests that another judge be
6 appointed to his case. The Court will treat this request as a motion to recuse the undersigned.
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A judge is required to disqualify himself if his impartiality might reasonably be
8 questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a party, 28
9 U.S.C. § 455(b)(1). A judge also should disqualify himself if “he has served in governmental
10 employment and in such capacity participated as counsel, adviser or material witness concerning
11 the proceeding or expressed an opinion concerning the merits of the particular case in
12 controversy.” 28 U.S.C. § 455(b)(3). The decision regarding disqualification is made by the
13 judge whose impartiality is at issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir.1994).
14 Opinions formed during the course of judicial proceedings “almost never constitute a valid basis
15 for a bias or partiality motion” and can only do so “in the rarest circumstances” where the
16 opinions reveal “such a high degree of favoritism or antagonism as to make fair judgment
17 impossible.” Liteky v. United States, 510 U.S. 540, 555–56 (1994). Where the source of alleged
18 bias or prejudice is a judicial proceeding, plaintiff must show a disposition on the part of the
19 judge that “is so extreme as to display clear inability to render fair judgment.” Id. at 551. “The
20 test is ‘whether a reasonable person with knowledge of all the facts would conclude that the
21 judge's impartiality might reasonably be questioned.” United States v. Wilkerson, 208 F.3d 794,
22 797 (9th Cir.2000) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997)).
23 “Frivolous and improperly based suggestions that a judge recuse should be firmly declined.”
24 Maier v. Orr, 758 F.2d 1578, 1583 (9th Cir.1985) (citations omitted).
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Petitioner provides no support for his present request that a new judge review his case.
26 Petitioner’s disagreement with an order is not sufficient to warrant recusal. There is no evidence
27 of any impartiality by the undersigned, and Petitioner is unable to point to anything in the record
28 even hinting at such a high degree of favoritism or antagonism that might warrant recusal. See
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1 Liteky, 510 U.S. at 555–56. Therefore, the undersigned will not recuse himself.
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II.
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ORDER
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Accordingly, this Court hereby ORDERS that:
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1) Petitioner’s motion for reconsideration of the dismissal of the Petition is DENIED;
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2) Petitioner’s motion for reconsideration of the denial of his motion to appoint counsel
is DENIED; and
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3) Petitioner’s motion to recuse the undersigned is DENIED.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill
February 4, 2015
UNITED STATES DISTRICT JUDGE
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