Huffine v. Kirkegard et al

Filing 37

ORDER denying 36 Motion under Rule 60. To the extent it is appropriate, a certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 7/6/2015. Mailed to Huffine. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ELDON HUFFINE,

JUL 0 6 2015
Cler~. y.s. District Court
D1stnct Of Montana
Missoula

Cause No. CV 15-02-BU-DLC

Petitioner,
vs.

ORDER

LEROY KIRKEGARD, et al.,
Respondents.

Petitioner Eldon Huffine is a state prisoner proceeding prose. On April 23,
2015, Huffine's petition for writ of habeas corpus under 28 U.S.C. § 2254 was
dismissed as time-barred. Order (Doc. 33); Judgment (Doc. 34). He did not appeal.
On June 29, 2015, the Court received from Huffine a thick packet of
documents. Huffine accuses the undersigned as well as United States Magistrate
Judge John Johnston of unconstitutional bias and of continuing to preside in this
matter despite Huffine's assertions of recusal. Because the allegations appear to be
the type that might, if true, support relief under Fed. R. Civ. P. 60(b), Huffine's
documents were filed as a Rule 60(b) motion. See Gonzalez v. Crosby, 545 U.S.
524, 533-35 (2005).
But the allegation is not true. "[E]xtreme facts" are required to create "an
unconstitutional probability of bias." Caperton v. A.T Massey Coal Co., Inc.,_
U.S._, 129 S. Ct. 2252, 2265 (2009). Further, "judicial rulings alone almost never
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constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510
U.S. 540, 555 (1994). "They may do so if they reveal an opinion that derives from
an extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible." Id. (emphases in
original).
Here, the ordinary procedures were followed. Judge Johnston explained to
Huffine that his motion was likely time-barred and gave him an opportunity to
avoid the time bar. See Order to Show Cause (Doc. 8). Huffine responded to the
Order at some length, submitting 249 pages for review (Docs. 9 through 18).
Nothing he said suggested he might avoid the time bar. Huffine had yet another
opportunity to avoid the time-bar when he filed 147 pages of documents (Docs. 20
through 32) after issuance of the Findings and Recommendation. Again, nothing he
said suggested he might avoid the time bar. This Court duly adopted the Findings
and Recommendation and dismissed the case.
Although the Court consulted its own dockets and the records of the
Montana Supreme Court, no extrajudicial sources were involved. Huffine identifies
no "extreme facts" and no cognizable reason why this Court or Judge Johnston
should not have presided in this action. The Court simply applied the law to the
facts in the manner required by the law rather than in the manner demanded by
Huffine. If Huffine believes his law is correct, his remedy lies in appeal, not
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recusal or reconsideration.
To the extent a certificate of appealability is required and allowed, see 28
U.S.C. § 2253(c)(l)(A); Jones v. Ryan, 733 F.3d 825, 832 n.3 (9th Cir. 2013), it is
not warranted. Serious and debatable issues may well be presented by a motion
seeking recusal or a Rule 60(b) motion, but not here. Huffine seeks to disqualify
judges who disagree with him. See, e.g., Mot. to Disqualify (Doc. 3) at 1; Order to
Show Cause (Doc. 8) at 1-2, 3-4 ~~ 2-3. As he maintains an idiosyncratic view of
the law, it is not surprising that judges disagree with him. Again, although the
Court has not looked closely at the merits ofHuffine's claims, they appear to be
conclusory and to rely on incorrect statements of law. He has not made a
substantial showing that he was deprived of a constitutional right, 28 U.S.C. §
2253( c)(2), and, at any rate, there is no doubt about the procedural ruling under
Rule 60(b), Gonzalez v. Thaler,_ U.S._, 132 S. Ct. 641, 648 (2012) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A reasonable jurist would find no
basis to encourage further proceedings in this case.

Accordingly, IT IS HEREBY ORDERED as follows:
1. Huffine's submission (Doc. 36), construed as a motion under Fed. R. Civ.
P. 60(b), is DENIED.
2. To the extent it is appropriate, a certificate of appealability is DENIED.
The Clerk shall immediately process the appeal if Huffine files a notice of appeal.
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3. This matter is CLOSED. Absent direction from a higher court, this Court
will take no action on future filings by Huf ne under this case number.
DATED this

G, ~

day of July, 2015

Dana L. Christensen, Chief Judge
United States District Court

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