Foster v. Secretary, DOC

Filing 23

MEMORANDUM AND ORDER that, within thirty (30) days from the date on this Order: Counsel for Petitioner shall discuss this Memorandum and Order with him; and The parties shall each state: (1) whether they believe recusal for actual bias or preju dice is required under 28 U.S.C. § 455(b); (2) whether a reasonable person could question my impartiality, justifying recusal under § 455(a); and (3) whether they waive any objection under § 455(a) to my participation in this case. Signed by Judge Sheri Polster Chappell on 4/14/2015. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN DON FOSTER,
Petitioner,
v.

Case No: 2:14-cv-597-FtM-38DNF

SECRETARY, DOC,
Respondent.
/
MEMORANDUM AND ORDER1
Upon review of the docket and pleadings in this case, it has come to my attention
that I was a prosecutor at the State Attorney's Office for the Twentieth Judicial Circuit
when Petitioner's underlying criminal case was prosecuted. I was not assigned to the
case, do not recall participating in the case in any manner, and do not have personal
knowledge of any disputed evidentiary facts concerning the state court proceedings.
However, from 1987 through 2000, I worked with the attorneys who prosecuted this case.
I do not view my tenure at the State Attorney’s Office as requiring recusal either
under 28 U.S.C. § 455(b) because of actual bias or under § 455(a) because my
impartiality might reasonably be questioned. However, it is prudent and appropriate for
me to disclose to the parties my association with the prosecutors in Petitioner's underlying

1

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state criminal proceedings to afford an opportunity to indicate whether they believe
recusal is required.
Title 28 U.S.C. § 455 is intended “to promote public confidence in the impartiality
of the courts by eliminating even the appearance of impropriety.” United States v.
Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987). Section 455(a) provides that a judge
must “disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” While § 455(a) deals with the appearance of partiality, § 455(b) addresses
conflicts of interest. If the facts listed in one of the prongs of § 455(b) exists, recusal is
required. If a relationship does not meet the level set forth in § 455(b) as requiring
recusal, then that relationship (standing alone) is not sufficient to show the appearance
of partiality under § 455(a). Liteky v. United States, 510 U.S. 540, 554 (1994).
Subsection 455(b)(1) requires recusal where a judge has a “personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding[.]” Subsection 455(b)(3) requires recusal “[w]here [the judge]
has served in governmental employment and in such capacity participated as counsel,
adviser, or material witness concerning the proceeding or expressed an opinion
concerning the merits of the particular case in controversy[.]” It is my opinion that these
provisions do not apply, because while serving in government employment, I did not
participate in any way with this proceeding (or the former state court criminal proceeding)
or express an opinion concerning the merits of Petitioner's underlying criminal case. Nor
was I privy to “disputed evidentiary facts” concerning the proceeding. Therefore, I do not
believe that my recusal is required under 28 U.S.C. § 455(b).
The standard for recusal under § 455(a) is “whether an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on which recusal was sought

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would entertain a significant doubt about the judge's impartiality.” United States v. Patti,
337 F.3d 1317, 1321 (11th Cir. 2003) (citing Parker v. Connors Steel Co., 855 F.2d 1510,
1524 (11th Cir.1988)). Doubts are to be resolved in favor of recusal. Id. (citing United
States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989)). Nevertheless, “there is as much
obligation for a judge not to recuse when there is no occasion for him to do so as there is
for him to do so when there is.” In re Moody, 775 F.3d 891, 895 (11th Cir. 2014) (quoting
United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992)). If a judge were able to
recuse under § 455(a) in circumstances in which an objective, knowledgeable member of
the public would not find a reasonable basis for doubting her impartiality, she “could
abdicate in difficult cases at the mere sound of controversy[.]” In re United States, 666
F.2d 690, 695 (1st Cir. 1981). “Thus, under § 455(a), a judge has a duty to recuse
himself if his impartiality can reasonably be questioned; but otherwise, he has a duty to
sit.” United States v. Snyder, 235 F.3d 42, 46 (1st Cir. 2000). It is my view that my
marginal relationship with this case does not require recusal under § 455(a) because I do
not believe that such relationship could lead to my impartiality being reasonably
questioned.
In accordance with the foregoing, it is hereby ORDERED that, within THIRTY (30)
DAYS from the date on this Order:
1.

Counsel for Petitioner shall discuss this Memorandum and Order with him;

2.

The parties shall each state: (1) whether they believe recusal for actual bias

and

or prejudice is required under 28 U.S.C. § 455(b); (2) whether a reasonable person could
question my impartiality, justifying recusal under § 455(a); and (3) whether they waive
any objection under § 455(a) to my participation in this case. See 28 U.S.C. § 455(e).

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DONE and ORDERED in Fort Myers, Florida on this 14th day of April, 2015.

SA: OrlP-4
Copies: All Parties of Record

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