Witchard v. United States of America

Filing 4

ORDER denying 3 motion for recusal. See Order for other details and deadlines. Signed by Judge Roy B. Dalton, Jr. on 7/26/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSEPH WITCHARD,
Petitioner,
v.

CASE NO. 6:16-cv-1254-Orl-37GJK
(6:14-cr-112-Orl-37GJK)

UNITED STATES OF AMERICA,
Respondent.
ORDER
This case is before the Court on the following matters:
1.

Petitioner has filed a Motion for Recusal of Trial Judge (Doc. 3), wherein he

maintains that the undersigned should disqualify himself, pursuant to 28 U.S.C. § 455(a)
and (b)(2), from considering Petitioner’s 28 U.S.C. § 2255 motion.

In support of the

motion, Petitioner maintains that the undersigned exhibited extreme prejudice and
bigotry toward him during his criminal case.

(Doc. 3 at 1).

Petitioner further notes that

he filed a judicial complaint against the undersigned on January 11, 2016, because the
undersigned “failed to protect his constitutional and civil rights from prosecutorial
misconduct and government agents [sic] blatant violations of criminal law, in regards to
manufacturing and filing [a] fraudulent arrest warrant” against Petitioner.

(Id).

Petitioner further submitted a letter from the Eleventh Circuit Court of Appeals
acknowledging receipt of his judicial complaint and notifying Petitioner of the
procedural treatment of the complaint.

(Doc. 3-1).

Pursuant to 28 U.S.C. § 144,
Whenever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom the matter
is pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be heard, or good cause
shall be shown for failure to file it within such time. A party may file only
one such affidavit in any case. It shall be accompanied by a certificate of
counsel of record stating that it is made in good faith.
28 U.S.C. § 144 (2016).

Likewise, 28 U.S.C. § 455 provides in relevant part that a federal

judge must disqualify himself if his “impartiality might reasonably be questioned,” if he
“has a personal bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding,” or “the judge . . . has been a material
witness concerning” the case.

28 U.S.C. § 455(a), (b)(1)-(2) (2016).

The test under §

455(a) is “whether an objective, disinterested, lay observer fully informed of the facts on
which recusal was sought would entertain a significant doubt about the judge’s
impartiality.”

United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993).

Furthermore,

for disqualification to be warranted under 28 U.S.C. § 455, a “judge’s bias must be
personal and extrajudicial; it must derive from something other than that which the judge
learned by participating in the case.”

McWhorter v. City of Birmingham, 906 F.2d 674, 678

(11th Cir. 1990) (citing Jaffe v. Grant, 793 F.2d 1182, 1188 (11th Cir. 1986)).

Consequently,

generally, “a judge’s rulings in the same or a related case may not serve as the basis for a
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recusal motion.”

Id.

An exception to this rule “is the situation in which ‘such

pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute
bias against a party.’” Jaffe, 793 F.2d at 1189 (quoting United States v. Phillips, 664 F.2d
971, 1002–03 (5th Cir. 1981)).
Petitioner has not alleged facts sufficient to lead an objective observer to have a
significant doubt about the undersigned’s impartiality.

With respect to Petitioner’s

filing of a judicial complaint against the undersigned, “courts have . . . consistently held
that a judge is not disqualified pursuant to § 455 ‘merely because a litigant sues or
threatens to sue him.’” Woodruff v. McLane, No. CIV.A. 7:04-CV-96(HL), 2006 WL 3436045,
at *1 (M.D. Ga. Nov. 29, 2006) (citing United States v. Grismore, 564 F.2d 929, 933 (10th Cir.
1977)). Similarly, other courts have found that the filing of a judicial complaint does not
warrant recusal.

See, e.g., Smartt v. United States, 267 F. Supp. 2d 1173, 1177 (M.D. Fla.

2003); Woodruff, 2006 WL 3436045, at *1; United States v. Talley, No. 3:06CR448-01 RV, 2007
WL 2208811, at *1 (N.D. Fla. July 27, 2007). As recognized in In re Taylor, 417 F.3d 649,
652 (7th Cir. 2005), “suits against public officials are common and a judge would likely
not harbor bias against someone simply because the person named him in a meritless
civil suit.”

The basis of Petitioner’s judicial complaint seemingly stems from the

undersigned’s rulings in Petitioner’s criminal proceedings.
themselves evidence bias.

Adverse orders do not

Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001)

(concluding “adverse rulings alone do not provide a party with a basis for holding that
the court’s impartiality is in doubt.”).

In sum, the undersigned does not harbor any bias
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against Petitioner because of his filing a judicial complaint or otherwise, and a reasonable
person, fully informed of the facts, would not question the undersigned’s impartiality.
Finally, Petitioner has not demonstrated that the undersigned has any personal bias or
prejudice against Petitioner or personal knowledge of disputed evidentiary facts
concerning the proceeding, nor has the undersigned been a material witness concerning
the case.

Thus, Petitioner has failed to show that recusal is necessary, and Motion for

Recusal of Trial Judge (Doc. 3) is DENIED.
2.

Petitioner filed a motion to vacate, set aside, or correct an illegal sentence

pursuant to 28 U.S.C. § 2255.

Upon consideration of the motion and in accordance with

the Rules Governing Section 2255 Proceedings for the United States District Courts, it is
ORDERED as follows:
(a)

The Government shall, within sixty (60) days from the date of this Order,

file a response indicating why the relief sought in the motion should not be granted.
(b)

As part of the initial pleading required by paragraph (a) of this Order, the

Government shall also:
(1)
State whether Petitioner has used any other available federal
remedies including any prior post-conviction motions and, if so,
whether an evidentiary hearing was accorded to the movant in any
federal court;
(2)
Procure transcripts and/or narrative summaries in
accordance with Rule 5(b) of the Rules Governing Section 2255 Cases
in the United States District Courts and file them concurrently with
the initial pleading;
(3)

Summarize the results of any direct appellate relief sought
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by Petitioner to include citation references and copies of appellant
and appellee briefs from every appellate proceeding. 1
(4)
Provide a detailed explanation of whether the motion was
or was not filed within the one-year limitation period as set forth
in 28 U.S.C. ' 2255.
(c)

Henceforth, Petitioner shall mail one copy of every pleading, exhibit and/or

correspondence, along with a certificate of service indicating the date an accurate copy was
mailed, to the Government listed in the bottom of this Order.
(d)

Petitioner shall advise the Court of any change of address.

Failure to do so will

result in the case being dismissed for failure to prosecute.
DONE AND ORDERED in Orlando, Florida, this 26th day of July, 2016.

Copies to:
OrlP-1
Joseph Witchard
Office of the United States Attorney
1The

Government shall also indicate whether each claim was raised on direct appeal. If
any of the claims were not raised on direct appeal, the Government shall indicate whether it
waives the defense concerning the failure to raise the claim on direct appeal. See Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir. 1994); see also Cross v. United States, 893 F.2d 1287,
1289 (11th Cir. 1990). If any of the claims were raised on direct appeal, the Government shall
indicate whether it waives the defense concerning the relitigation of claims that were
previously raised and disposed of on direct appeal. See United States v. Rowan, 663 F.2d 1034,
1035 (11th Cir. 1981).
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400 W. Washington Street, Suite 3100
Orlando, FL 32801

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