Cornell v. Bennett

Filing 27

ORDER denying 21 Motion Requesting Assignment of New District Judge. Signed by Chief Judge Roberto A. Lange on 9/8/21. Sent to David Allen Cornell via USPS. (SKK)

Case 4:21-cv-04056-RAL Document 27 Filed 09/08/21 Page 1 of 3 PageID #: 164

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

DAVID ALLEN CORNELL,

4:21-CV-04056-RAL

Petitioner,

ORDER DENYING PETITIONER'S

vs.

MOTION REQUESTING ASSIGNMENT OF
K. BENNETT, WARDEN YANKTON FPC,

NEW DISTRICT JUDGE

Respondent.

Petitioner David Allen Cornell filed a petition under 28 U.S.C. § 2254 for Writ of Habeas

Corpus. Doc. 1. Respondent filed a motion to dismiss, Doc. 12, which this Court granted on July
21, 2021. Doc. 16. Pending before this Court is Cornell's motion requesting assignment of a new
districtjudge. Doc. 21.

Cornell requests "a new Judge in the district... who will give the proper time to review

the case and law[.]" Id. at 2. As Cornell is requesting both a new judge and a reconsideration of
this Court's dismissal of Cornell's petition, this Court construes his motion as both a motion for
recusal and a motion for reconsideration.
I.

Motion for Recusal

Cornell moves for the recusal of the undersigned judge. Id. He claims that this judge is

mishandling this case and other similar cases by failing to ask the government to respond, failing
to request a magistrate judge's report and recommendation, and failing to grant an evidentiary
hearing. Id. at 1."A judge must recuse from 'any proceeding in which [the judge's] impartiality
might reasonably be questioned.'" United States v. Melton. 738 F.3d 903,905 (8th Cir. 2013)
(alteration in original)(quoting 28 U.S.C. § 455(a)). This standard is objective and questions
1

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"whether the judge's impartiality might reasonably be questioned by the average person on the
street who knows all the relevant facts of a case." Id (quoting Moran v. Clarke. 296 F.3d 638,

648(8th Cir. 2002)(en banc)). The party that files the motion for recusal "carries a heavy burden
of proof; a judge is presumed to be impartial and the party seeking disqualification bears the
substantial burden of proving otherwise." Fletcher v. Conoco Pine Line Co.. 323 F.3d 661,664
(8th Cir. 2003)(internal quotation omitted).

The party must show "that the judge had a disposition so extreme as to display clear
inability to render fair judgment." Melton. 738 F.3d at 905 (internal quotation omitted). Cornell
bases his motion on allegations of ignorance of the law. Doc. 20. But "judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion." Litekv v. United States. 510

U.S. 540, 555(1994). A judicial ruling "cannot possibly show reliance upon an extrajudicial
source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism

required ... when no extrajudicial source is involved. Almost invariably, they are proper
grounds for appeal, not for recusal." Id. Here, Cornell's disagreement with prior rulings may be
grounds for an appeal, but he has not shown that the undersigned judge is unable to be impartial
or to render a fair judgment. Further, Comell is mistaken about his case's history; the

government did respond to his petition with a motion to dismiss and a memorandum in support
of that motion. Docs. 12 and 13. Comell has not met his burden, so his motion for recusal is
denied.

11.

Motion for Reconsideration

Comell moves for reconsideration of this Court's dismissal of his petition.

Doc. 21.

He argues that this Court was mistaken in finding that the Bureau of Prisons(BOP)has until
January 15, 2022, to implement the First Step Act(FSA). Id. at 1. This Court previously

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addressed this issue in Holt v. Warden,2021 WL 1925503(D.S.D. May 13, 2021). Under 18
U.S.C. § 3621(h)(4), the BOP "way ojfer to prisoners who successfully participate in such
programs and activities [FSA time credits.]" § 3621(h)(4). Thus, because "'may' is permissive,"
this Court cannot compel the BOP to offer FSA time credits. Holt. 2021 WL 1925503, at *5-6.
Cornell argues that other decisions, such as Goodman v. Ortiz. 2020 WL 5015613
(D.N.J. Aug. 25, 2020), Hare v. Ortiz. 2021 WL 391280(D.N.J. Feb. 4,2021)and "many
others" have ruled in favor of petitioners on this issue. Doc. 21 at 1. But in Goodman,there was
no underlying dispute between the parties as to the calculation of time credits, and in Hare, the

respondent did not seek to challenge the ruling in Goodman as to the application of time credits
prior to January 15, 2022. Goodman. 2020 WL 5015613, at *2;fe 2021 WL 391280, at *6.
,
Here, the government disputes ComelTs calculation of his earned time credits.

Doc. 13 at

16. Also, although Cornell claims that many other cases support his reading of the statute, the

vast majority of district courts have disagreed with his position and that of Goodman and Hare.
See Holt. 2021 WL 1925503 at *5 (collecting cases). To the extent that this Court construes
Cornell's motion as a motion for reconsideration, it is denied.

Therefore, it is hereby
ORDERED that Petitioner's motion requesting assignment of a new districtjudge, Doc.
21, is denied.
DATED September

,2021

BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE