Gordon v. Sanders
Filing
23
Memorandum and Order Denying 21 Writ of Mandamus Under 28 U.S.C. 1361 and 28 U.S.C. 144. Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN GORDON,
Petitioner,
vs.
Civil Case No. 12-15562
Criminal Case No. 92-81127-33
LINDA SANDERS,
HON. AVERN COHN
Respondent.
_______________________________/
MEMORANDUM AND ORDER
DENYING WRIT OF MANDAMUS UNDER 28 U.S.C.§ 1361 AND 28 U.S.C. § 144
(Doc. 21)
I.
This is a case under 28 U.S.C. § 2241. On May 10, 2013, the Court dismissed
the petition for lack of merit. (Doc. 17). Now before the Court is Petitioner John
Gordon’s “Writ of Mandamus under 28 U.S.C. § 1361 and 28 U.S.C. § 144.” From what
can be gleaned, Gordon seeks mandamus compelling the Court to rule on the merits of
his § 2241 motion and also moves for disqualification of the undersigned. For the
reasons that follow, the motion will be denied.
Also before the Court is a Motion Amend or Make Additional Factual Findings
Pursuant to Fed. R. Civ. P. 52(b) and Rule 56(c) in which Gordon appears to outline his
reasons for seeking disqualification of the undersigned and/or to support a complaint of
judicial misconduct. The motion is construed as a supplemental filing, not a motion, and
its contents will be considered. Gordon has also filed a motion to stay the motion to
amend pending disposition of the writ of mandamus. Given that the Court is denying
mandamus relief, this motion is MOOT. Thus, this order resolves all pending motions.
See Docs. 20, 21, and 22.
II.
Gordon has a long history of challenging his convictions. In 1995, Gordon was
convicted by a jury on various drug and continuing criminal enterprise charges. He was
sentenced in 1996 to two concurrent terms of life imprisonment. The Court of Appeals
for the Sixth Circuit affirmed his conviction and sentence on direct appeal. United
States v. Polk, et al., Nos. 96- 1492 /1512 /1533 /1534 /1710, 1999 WL 397922 (6th Cir.
June 2, 1999) (unpublished). The Supreme Court denied certiorari. United States v.
Gordon, No. 99-6910.
Gordon then filed a motion to vacate his sentence under 28 U.S.C. § 2255
claiming that he was deprived of his Sixth Amendment right to effective assistance of
counsel. See Doc. 1765 in United States v. Gordon, 92-81127-33. The Court denied
the motion and a certificate of appealability. See Docs. 1773, 1792 in case no. 9281127-33. The Sixth Circuit also denied a certificate of appealability. See Gordon v.
United States, No. 01-1503 (6th Cir. Dec. 14, 2001).
Thereafter, Gordon filed several motions challenging his conviction and sentence
in his criminal case. None of them were successful.
The Sixth Circuit has also repeatedly denied Gordon authorization to challenge
his conviction and sentence. Notably, in August 2012, the Sixth Circuit denied him
permission to file a successive motion under § 2255. See In re: John Gordon, No. 112182 (6th Cir. July 30, 2012). Then, on March 29, 2013, the Sixth Circuit again denied
him permission to file a motion under § 2255. In re: John Gordon, No. 12-1791 (6th Cir.
Mar. 29, 2013).
2
On December 19, 2012, Gordon filed a petition under § 2241. The case was
later assigned to the undersigned as a companion to Gordon’s criminal case. (Doc.
15).1 On May 10, 2013, the Court dismissed the petition on the grounds that Gordon
failed to establish he was entitled to relief under § 2241. (Doc. 17).
On June 11, 2013, Gordon filed the instant paper seeking a writ of mandamus.
III.
A.
The federal mandamus statute, 28 U.S.C. § 1361, confers jurisdiction on the
federal court to “compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” “The remedy of mandamus is a drastic
one, to be invoked only in extraordinary situations where the petitioner can show a clear
and indisputable right to the relief sought.” Gresham v. Correctional Med. Servs., Inc.,
650 F.3d 628, 630 (6th Cir.2011) (internal quotation marks and citation omitted).
Mandamus relief “is usually reserved for ‘questions of unusual importance necessary to
the economical and efficient administration of justice,’ or ‘important issues of first
impression.’ ” In re Powerhouse Licensing, LLC, 441 F.3d 467, 471 (6th Cir.2006).
“Thus, only exceptional circumstances amounting to a judicial usurpation of power, or a
clear abuse of discretion, will justify the invocation of this extraordinary remedy.” In re
McNulty, 597 F.3d 344, 349 (6th Cir.2010) (internal quotation marks and citation
omitted). “And, because mandamus is a discretionary remedy, a Court may decline to
issue the writ if it finds that it would not be ‘appropriate under the circumstances' even if
1
Even though the case was reassigned to the undersigned, Gordon continues to
list the district judge to whom the case was originally assigned on his papers.
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the petitioner has shown that he is ‘clear[ly] and indisputabl[y]’ entitled to it.” Id.
Importantly, “Plaintiff may not use[ ] mandamus ... to avoid the requirements for seeking
appellate review of the judgments entered ... or as a substitute for pursuing the limited
remedy available under Rule 60(b) for seeking relief from a judgment.” Adkins v. Crow,
2011 WL 1335833, at *1 (D.Kan. Apr.6, 2011) (noting also that the Circuit Court would
be the appropriate court for seeking mandamus relief to compel action in a district court
case), aff'd, 432 Fed. Appx. 748 (10th Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct.
592, 181 L.Ed.2d 435 (2011).
B.
Gordon has not established that he is entitled to mandamus relief. Rather, he
disagrees with the Court’s decision to dismiss his § 2241 petition. That is not sufficient
to warrant mandamus relief. The balance of the mandamus petition is directed at
Gordon’s request that the undersigned be disqualified, which is addressed below.
IV.
First, to obtain recusal under Section 144, a litigant must submit, along with his
motion, an affidavit stating “the facts and the reasons for [his] belief that bias or
prejudice exists.” 28 U.S.C. § 144. Upon the filing of a “timely and sufficient affidavit,”
section 144 mandates that the assigned “judge shall proceed no further, but another
judge shall be assigned to hear such proceeding.” Id.; see also Bhd. of Locomotive
Firemen and Enginemen v. Bangor & Aroostook R.R. Co., 380 F.2d 570, 576 (D.C. Cir.
1967) (“The disqualification statute, 28 U.S.C. § 144, is mandatory and automatic,
requiring only a timely and sufficient affidavit alleging personal bias or prejudice of the
judge.”). “Importantly, the mere fact that a party has filed a § 144 motion, accompanied
4
by the requisite affidavit and certificate of counsel, does not automatically result in the
challenged judge's disqualification.” Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77
(D.D.C.2010); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C.2005)
(“disqualification is not automatic upon submission of affidavit and certificate”). Rather,
recusal is required only upon the filing of a “timely and sufficient affidavit” alleging
personal bias or prejudice of the judge. 28 U.S.C. § 144.
Here, Gordon has not filed an affidavit that sets forth “the facts and the reasons
for [his] belief that bias or prejudice [of the undersigned] exists.” However, liberally
construing Gordon’s filings, including the motion to amend, as an affidavit, Gordon has
not set forth any substantive statements regarding bias or prejudice by the undersigned.
At best, Gordon says the undersigned is biased because he dismissed his § 2241
petition and has otherwise denied his prior requests for collateral review. That does not
satisfy the requirements under section 144.
Moreover, section 455(a) provides, in pertinent part, that a federal judge “shall
disqualify himself in any proceeding where his impartiality might reasonably
questioned.” Importantly, the law is well-established that adverse judicial decisions can
form the basis for recusal only in the most extraordinary circumstances. See Liteky v.
United States, 510 U.S. 540, 555 (1994); United States v. Grinnell Corp., 384 U.S. 563,
(1966). Gordon has not alleged any improprieties by the undersigned, nor submitted
any evidence of alleged bias by the undersigned against Gordon. As explained in the
order of dismissal, Gordon simply failed to show that he is entitled to relief under
§ 2241.
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Overall, the Court concludes that a reasonable, objective person would not
question: (a) the Court's order of dismissal, or (b) the undersigned's impartiality in this
matter. Accordingly, Gordon’s request for mandamus and for recusal is DENIED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 12, 2013
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, September 12, 2013, by electronic and/or ordinary mail.
S/Sakne Chami
Case Manager, (313) 234-5160
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