Golden v. Kirkegard et al

Filing 6

ORDER DENYING PETITIONS AND DENYING CERTIFICATE OF APPEALABILITY. The motions to proceed in forma pauperis are DENIED because the petitions are frivolous. The motions for immediate release are likewise DENIED because the petitions are frivolous. Any appeal would not be taken in good faith. Signed by Judge Dana L. Christensen on 1/30/2015. Mailed to Golden. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No. CV 15-07-M-DLC

TRAVIS LEE GOLDEN,
Petitioner,
vs.
LEROY KIRKEGARD, et al.,
Respondents.

Cause No. CV 15- l O -M-DLC

TRAVIS LEE GOLDEN,
Petitioner,

FILED

vs.

JAN 3 0 2015

LEROY KIRKEGARD, et al.,

Clerk. U,S District Court
District Of Montana

Respondents.

Missoula

ORDER DENYING PETITIONS AND
DENYING CERTIFICATE OF APPEALABILITY
These cases come before the Court on Petitioner Travis Lee Golden's
applications for writs of habeas corpus under 28 U.S.C. § 2254. Golden is a state
prisoner proceeding pro se. Although the cases were referred on opening to a
United States Magistrate Judge, see D. Mont. L.R. 72.2(a)(l), it is clear the
proceedings need not be protracted. Referral is terminated. See L.R. 72.2( c).
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Golden states that he was convicted and sentenced in Missoula County on
December 7, 2006, for assault with a weapon, and on November 4, 2010, for
tampering with evidence. See Pet. (Doc. 1) at 2 ~ 2. He claims that his current
custody is unlawful because, in both cases, charges were initiated when the same
judge who eventually convicted and sentenced him found probable cause to
believe he committed the crime and granted the prosecutor's motion for leave to
file an Information. Golden believes this means the judge became part of the
accusatory process, which should have mandated his recusal.
"[O]pinions held by judges as a result of what they learned in earlier
proceedings" are "not subject to deprecatory characterization as 'bias' or
'prejudice."' Liteky v. United States, 510 U.S. 540, 551 (1994). Even a judge who
is "exceedingly ill disposed towards the defendant" after presiding at trial "is not
thereby recusable for bias or prejudice, since his knowledge and the opinion it
produced were properly and necessarily acquired in the course of the
proceedings." Id. at 550-51.
If a judge's formation of an opinion of a defendant in the course of a

criminal case does not violate constitutional due process, certainly reviewing an
affidavit, finding mere probable cause to believe the defendant has committed a
crime, and authorizing the filing of an Information does not. This procedure does
not make a judge part of the accusatory process any more than issuing a search
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warrant makes a judge part of the investigative process. Or, to look at it another
way, when a judge finds a warrant application is not supported by facts sufficient
to show probable cause, she is not thereby disqualified from reviewing another
application on the grounds that she previously ruled against the State. The judge's
role in these proceedings is not distinguishable in principle from deciding whether
bail should be granted, or whether a motion to suppress or a motion in limine
should be granted or denied, or whether evidence should or should not be admitted
under Fed. R. Evid. 104(a) or 801(d)(2)(C), (D), or (E). Golden's reasoning,
pressed to its logical conclusion, would hold that virtually every exercise of
judgment by a judge mandates the judge's recusal from further proceedings. That
proposition is not remotely supported by any precedent of which the Court is
aware.
The allegations in these petitions are frivolous. The petitions are denied
because all claims are conclusively lacking in merit Rule 4, Rules Governing §
2254 Cases.
Golden does not make any showing that he was deprived of a constitutional
right. A certificate of appealability is not warranted. 28 U.S.C. § 2253( c)(2).

Based on the foregoing, the Court enters the following:

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ORDER
1. Golden's Petitions are DENIED for lack of merit.
2. The motions to proceed in forma pauperis (Doc. 2) are DENIED because
the petitions are frivolous.
3. The motions for immediate release (Doc. 3) are likewise DENIED
because the petitions are frivolous.
4. The Clerk of Court is directed to enter judgment in each case, by separate
document, against Petitioner and in favor of Respondents.
5. A certificate of appealability is DENIED on all issues in each case.
6. In the event Golden seeks leave to pursue an appeal in forma pauperis,
the Court CERTIFIES that any appeal would not be taken in good faith. Fed. R.
App. P. 24(a)(4)(B).
7. These cases are CLOSED. Other than a notice of appeal, no further
filings will be accepted.
DATED this

10

-kA

day of January, 2

Dana L. Christensen, Chief Judge
United States District Court

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