Ari v. Patrick

Filing 6

ORDER OF DISMISSAL by Judge William Alsup denying 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel ; denying 4 Motion to Disqualify Judge. (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 6/28/2007)

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Ari v. Patrick Doc. 6 Case 3:07-cv-03291-WHA Document 6 Filed 06/28/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 ROXANNE ARI, Petitioner, vs. DEBORAH L. PATRICK, Warden, Respondent. / No. C 07-3291 WHA (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas case filed pro se by a state prisoner. Petitioner has moved to disqualify the undersigned. As grounds for disqualification she quarrels with this Court's rulings in her previous cases. This is not sufficient to allege a personal bias, as required by 28 U.S.C. 144. See United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995) (judge's rulings in litigant's other cases not grounds for disqualification). The declaration therefore is not legally sufficient under Section 144, and the motion, construed as being made pursuant to Section 144, will be denied without reference to another judge. See United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (judge not required to refer motion to recuse to another judge if motion is not timely or legally sufficient). In addition, the Court has considered the contentions in the motion under 28 U.S.C. 445. A reasonable person considering the rulings in petitioner's previous cases would not conclude that they were the product of bias. See Liteky v. United States, 510 U.S. 540, 555- 56 (1994) (judicial rulings alone may constitute grounds for appeal, but almost never constitute Case 3:07-cv-03291-WHA Document 6 Filed 06/28/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 a valid basis for a bias or impartiality motion). For these reasons, the motion is also without merit when construed as being brought pursuant to Section 445. The motion to disqualify (document number 4 on the docket) is DENIED. Petitioner had a previous habeas case before this court, C 01-1139 WHA (PR). It was transferred to the Eastern District of California on June 14, 2001, and given case number CIV- F-01-5848 OWW DLB by that court. It was then dismissed by that court for failure to allege grounds that would entitle petitioner to habeas relief. This petition, therefore, is second or successive. Second or successive petitions may not be filed unless the petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing the district court to consider the petition. See 28 U.S.C. 2244(b)(3)(A). Petitioner has not obtained such an order. The petition accordingly is DISMISSED without prejudice to refiling if she obtains the necessary order. Petitioner's motion to proceed in forma pauperis (document number 2) is DENIED. No fee is due. Her motion for appointment of counsel (document number 3) is DENIED as moot. Petitioner may disregard the clerk's notice regarding the insufficiency of her application to proceed in forma pauperis. The clerk shall close the file. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: June 28 , 2007. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE G:\PRO-SE\WHA\HC.07\ARI291.2D 2

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