Gordon v. Faulk et al

Filing 10

ORDER denying 9 Applicant's Motion for Recusal and Directing Respondents to File Pre-Answer Response, by Magistrate Judge Boyd N. Boland on 3/10/2014.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00371-BNB
LARRY GORDON,
Applicant,
v.
FRANCIS FAULK, Warden, Limon Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO JOHN SUTHERS,
Respondents.

ORDER DENYING APPLICANT’S MOTION FOR RECUSAL AND
DIRECTING RESPONDENTS TO FILE PRE-ANSWER RESPONSE

Applicant, Larry Gordon, acting pro se, is a prisoner in the custody of the
Colorado Department of Corrections who currently is incarcerated at the correctional
facility in Limon, Colorado. On February 7, 2014, he submitted an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On February 12, 2014, I
entered an order (ECF No. 4) directing Mr. Gordon to file within thirty days on the Courtapproved form an amended application that complied with Rule 8(a) of the Federal
Rules of Civil Procedure and Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section
2254 Cases in the United States District Courts (Section 2254 Rules).
On February 24, 2014, Mr. Gordon filed an amended application (ECF No. 5) and
an affidavit (ECF No. 6). The amended application was not on the Court-approved form
and did not comply with Fed. R. Civ. P. 8(a) or the Section 2254 Rules. On February
27, 2014, I entered an order directing Mr. Gordon to file within thirty days a second and

final amended application on the Court-approved form that complied with Fed. R. Civ. P.
8(a) and the Section 2254 Rules. On March 5, 2014, Mr. Gordon filed both a second
and final amended application (ECF No. 8) and a motion (ECF No. 9) asking for my
recusal.
The Court must construe the motion for recusal liberally because Mr. Gordon is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons discussed
below the motion for recusal will be denied.
In the recusal motion, Mr. Gordon makes allegations about the Honorable John
L. Kane, which are irrelevant here because Judge Kane is not a judge on this case, and
asks for my recusal “because of a personal conflict against the petitioner.” ECF No. 9 at
2. Because of Mr. Gordon’s pro se status, I will construe the motion for recusal as a
motion under 28 U.S.C. § 455.
Pursuant to 28 U.S.C. § 455(a), ‘[a]ny justice, judge, or magistrate [judge] 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
partiality.” 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,
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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,
disqualification under § 455(a) 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 350-51; 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
(emphasis in original). Application of § 455(a) necessarily includes emphasis on
whether a judge's impartiality might “reasonably” be questioned. Id. Section 455(a) is
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not to be construed so broadly 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. Gordon’s request for my recusal is insufficient because it fails to show
personal bias or prejudice. The recusal motion apparently is based only on Applicant’s
disagreement with my orders requiring him to file an amended application on the Courtapproved form that complies with Fed. R. Civ. P. 8(a) and the Section 2254 Rules. The
recusal petition fails to make any argument that would demonstrate an appearance of
partiality. Mr. Gordon’s disagreement with my orders is not sufficient to demonstrate
that disqualification is appropriate pursuant to either § 144 or § 455(a) because ‘judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky,
510 U.S. at 555. Therefore, the March 5 motion for my recusal will be denied.
As part of the preliminary consideration of the second and final amended
application (ECF No. 8) filed on March 5 in this action and pursuant to Denson v.
Abbott, 554 F. Supp. 2d 1206 (D. Colo. 2008), I have determined that a limited preanswer response is appropriate. Respondents are directed pursuant to Rule 4 of the
Section 2254 Rules to file a pre-answer response limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
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remedies under 28 U.S.C. § 2254(b)(1)(A). If Respondents do not intend to raise either
of these affirmative defenses, they must notify the Court of that decision in the preanswer response. Respondents may not file a dispositive motion as their pre-answer
response, or an answer, or otherwise address the merits of the claims in response to
this order.
In support of the pre-answer response, Respondents should attach as exhibits all
relevant portions of the state court record, including but not limited to copies of all
documents demonstrating whether this action is filed in a timely manner and/or whether
Applicant has exhausted state court remedies.
Applicant may reply to the pre-answer response and provide any information that
might be relevant to the one-year limitation period under 28 U.S.C. § 2244(d) and/or the
exhaustion of state court remedies. Applicant also should include information relevant
to equitable tolling, specifically as to whether he has pursued his claims diligently and
whether some extraordinary circumstance prevented him from filing a timely 28 U.S.C. §
2254 action in this Court.
Accordingly, it is
ORDERED that the motion for recusal (ECF No. 9) that Applicant, Larry Gordon,
filed on March 5, 2014, and which has been construed liberally as a motion pursuant to
28 U.S.C. § 455(a), is denied. It is
FURTHER ORDERED that within twenty-one (21) days from the date of this
order Respondents shall file a pre-answer response that complies with this order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the

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pre-answer response Applicant may file a reply, if he desires. It is
FURTHER ORDERED that if Respondents do not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, they must
notify the Court of that decision in the pre-answer response.
DATED March 10, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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