Wallin v. Werholtz

Filing 24

ORDER denying 22 Motion for Recusal of Magistrate Judge, by Magistrate Judge Boyd N. Boland on 01/07/14.(nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01867-BNB
OLOYEA D. WALLIN, a.k.a. DONALD OLOYEA, a.k.a. OLOYEA WALLIN,
Applicant,
v.
MICHAEL MILLER, Warden of Crowley County Correctional Facility,
Respondent.

ORDER DENYING MOTION TO RECUSE

On January 2, 2014, Plaintiff, Oloyea D. Wallin, filed a “Motion and Affidavit for
Recusal of Magistrate Judge, ECF No. 22. I deny the motion based on the following
findings.
Consideration for disqualifying magistrate judges is regulated by 28 U.S.C.
§ 455(a). Section 455(a) states that “[a]ny justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” The general purpose of § 455(a) is “to promote public
confidence in the integrity of the judicial process” and to avoid even the “appearance of
impropriety.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988).
“[W]hat matters is not the reality of bias or prejudice but its appearance.” Liteky v.
United States, 510 U.S. 540, 548 (1994). Under § 455(a), “a judge has a continuing
duty to recuse before, during, or, in some circumstances, after a proceeding, if the judge
concludes that sufficient factual grounds exist to cause an objective observer
reasonably to question the judge’s impartiality.” United States v. Cooley, 1 F.3d 985,

992 (10th Cir. 1993). “The decision to recuse is committed to the sound discretion of
the district court.” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992)
(citation omitted).
“The provisions of 28 U.S.C. § 455(a) do not command automatic disqualification
of a judge, to the contrary, it is the duty of the judge who is allegedly biased to pass on
the sufficiency of the allegations.” See David v. City & County of Denver, 837
F. Supp. 1094, 1095 (D. Colo. 1993). A judge has an obligation not to disqualify himself
unnecessarily. See Cooley, 1 F.3d at 994; David, 837 F. Supp. at 1095. A judge is
obligated not to recuse when there is no occasion for him to do, just as he is obligated
to recuse when there is occasion to do so. See Nichols v. Alley, 71 F.3d 347, 351 (10th
Cir. 1995); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). If, however, whether
§ 455(a) requires disqualification is a close question, the balance tips in favor of recusal.
See Nichols, 71 F.3d at 352.
Under § 455(a), the judge’s actual state of mind, purity of heart, incorruptibility, or
lack of partiality are not the issue; rather, the issue is whether a reasonable person,
knowing all of the relevant facts, would harbor doubts about the judge’s impartiality.
Id. at 351; Cooley, 1 F.3d at 993. The standard is purely objective and the inquiry is
limited to outward manifestations and reasonable inferences drawn therefrom. See
Nichols, 71 F.3d at 351; Cooley, 1 F.3d at 993.
In applying the objective test, “the initial inquiry is whether a reasonable factual
basis exists for calling the judge’s impartiality into question.” Cooley, 1 F.3d at 993.
Application of § 455(a) necessarily includes emphasis on whether a judge’s impartiality
might “reasonably” be questioned. Id. Section 455(a) is not to be construed so broadly
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that recusal would be mandated “upon the merest unsubstantiated suggestion of
personal bias or prejudice.” Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir. 1986)
(citing United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982)). Section 455(a)
should not be read to warrant the transformation of a litigant’s fear that a judge may
decide a question against him into a “reasonable fear” that the judge will not be
impartial. See Cooley, 1 F.3d at 993. The statute is not intended to give litigants a veto
power over sitting judges, or a vehicle for obtaining a judge of their choice. See
Nichols, 71 F.3d at 351; Cooley, 1 F.3d at 993.
Mr. Wallin requests that I recuse myself because I am helping and acting as
counsel for Respondent, and he will not be able to receive a fair hearing. Mr. Wallin
contends that directing Respondent to file a Supplement to his Response and address
affirmative defenses with respect to Claim Two was error because Respondent had
access to the Application and elected not to address Claim Two in the Preliminary
Response. Mr. Wallin’s motion for my recusal is insufficient because it fails to show
personal bias or prejudice. “[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky, 510 U.S. at 555.
In the August 23, 2013 Order to File Preliminary Response, I directed
Respondent to notify the Court in the Response if he did not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies. My addressing
Respondent’s failure either to raise affirmative defenses or state that he did not intend
to address the defenses with respect to Claim Two does not prejudice Mr. Wallin.
Respondent served Mr. Wallin with the Supplement, see ECF No. 21, and Mr. Wallin
will be given the opportunity to reply to the Supplement. Therefore, Mr. Wallin’s request
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for recusal will be denied. Accordingly, it is
ORDERED that Mr. Wallin’s Motion and Affidavit for Recusal of Magistrate
Judge, ECF No. 22, is DENIED.
DATED January 7, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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