Anderson v. Oldham

Filing 11

Order Denying Motion for Recusal; Order Denying Motion to Stay State Court Criminal Proceedings; Order Denying Motion to Convene Special Grand Jury; Order Denying Motion for Restraining Order; Order Denying Motion to be Released on Recognizance; Order of Dismissal; Order Certifying Appeal Not Taken in Good Faith. Signed by Judge S. Thomas Anderson on 8/24/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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DWAYNE ANDERSON,
Petitioner,
vs.
BILL OLDHAM,
Respondent.

No. 12-2285-STA/cgc

ORDER DENYING MOTION FOR RECUSAL
(DOCKET ENTRY 9)
ORDER DENYING MOTION TO STAY STATE CRIMINAL COURT PROCEEDINGS
(DOCKET ENTRY 3)
ORDER DENYING MOTION TO CONVENE A SPECIAL GRAND JURY
(DOCKET ENTRY 4)
ORDER DENYING MOTION FOR A RESTRAINING ORDER
(DOCKET ENTRY 7)
ORDER DENYING MOTION TO BE RELEASED ON RECOGNIZANCE
(DOCKET ENTRY 8)
ORDER OF DISMISSAL
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
On April 11, 2012, Petitioner Dwayne Anderson, booking
number 11102321, a detainee at the Shelby County Criminal Justice
Complex (“Jail”), filed a habeas petition under 28 U.S.C. § 2254.
(Docket Entry (“D.E.”) 1.)
order

granting

On April 17, 2012, the Court entered an

Petitioner’s

application

to

proceed

in

forma

pauperis because his trust fund account balance was less than
twenty-five dollars ($25.00). (D.E. 6.) It is ordered that the
Clerk shall file the petition and record the respondent as Bill
Oldham.

The Clerk shall not issue any process.
On May 25, 2012, Petitioner Anderson filed a motion for

recusal of the undersigned judge. (D.E. 9.) Anderson contends that

because the Court presided over an unrelated federal civil matter,
Anderson v. Cricket Communications, Inc., No. 11-2004-STA-cgc (W.D.
Tenn. Sept. 26, 2011), “partiality” is established. (D.E. 9 at 2.)
Plaintiff seeks recusal pursuant to 28 U.S.C. § 455(b).
Twenty-eight U.S.C. § 455(a) provides that a judge shall disqualify
himself

“in

any

proceeding

in

which

his

impartiality

might

reasonably be questioned.” Circumstances under which a judge must
disqualify himself include:
(1)

Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed
evidentiary
facts
concerning
the
proceeding;

(2)

Where in private practice he served as lawyer in
the matter in controversy, or a lawyer with whom he
previously practiced law served during such
association as a lawyer concerning the matter, or
the judge or such lawyer has been a material
witness concerning it;

(3)

Whether he has served in governmental employment
and in such capacity participated as counsel,
adviser
or
material
witness
concerning
the
proceeding or expressed an opinion concerning the
merits of the particular case in controversy;

(4)

He knows that he . . . or his spouse . . . has a
financial interest in the subject matter in
controversy or in a party to the proceeding, or any
other interest that could be substantially affected
by the outcome of the proceeding;

(5)

He or his spouse . . . :
(i)

Is a party in the proceeding . . . . ;

(ii)

Is acting as a lawyer in the proceeding;

(iii)

Is known by the judge to have an interest
that could be substantially affected by
the outcome of the proceeding;

2

(iv)

Is to the judge’s knowledge likely to be
a material witness in the proceeding.

28 U.S.C. § 455(b).
A judge must recuse himself if, knowing all of the
circumstances, a reasonable, objective person would question the
judge’s impartiality. United States v. Sammons, 918 F.2d 592, 599
(6th Cir. 1990). “The standard is an objective one; hence, the
judge need not recuse himself based on the ‘subjective view of a
party’ no matter how strongly that view is held.” Id. (citation
omitted). Bias sufficient to justify recusal must be personal,
arising out of the judge’s background, and not based on the judge’s
interpretation of the law. Ullmo ex rel. Ullmo v. Gilmour Acad.,
273 F.3d 671, 681 (6th Cir. 2001); Browning v. Foltz, 837 F.2d 276,
279 (6th Cir. 1988); United States v. Story, 716 F.2d 1088, 1090
(6th Cir. 1983). A judge’s participation in the proceedings or
prior contact with a litigant in related cases cannot support a
demand for recusal. Liteky v. United States, 510 U.S. 540, 556
(1994); Sammons, 918 F.2d at 599. Sections 144 and 455 are to be
read in pari materia to require that disqualification must be
predicated

upon

extrajudicial

conduct,

rather

than

judicial

conduct, and to require that the alleged bias and prejudice be
personal rather than judicial. Story, 716 F.2d at 1096.1 “A judge
is

presumed

to

be

impartial,

and

a

litigant

seeking

disqualification bears the burden of alleging facts that would lead

1

The Supreme Court has held that § 455(b)’s “extrajudicial source”
doctrine also applies to § 455(a). Liteky, 510 U.S. at 540.

3

a reasonable person to question the neutrality of the judge.”
United States v. Adams, No. 93-5682, 1994 WL 589509, at *2 (6th
Cir. Oct. 25, 1994) (per curiam).
The Court’s judicial rulings in an unrelated civil case
do not constitute the extrajudicial bias that requires a recusal.
The motion for recusal (D.E. 9) is DENIED.
Anderson was recently convicted in Shelby County Criminal
Court of unspecified charges.
time he filed this petition.

He was awaiting sentencing at the
Anderson contends that his right to

due process was violated by numerous pre-trial rulings by the state
court judge and Tennessee’s appellate courts. He seeks to overturn
his conviction in Shelby County Criminal Court and immediate
release from imprisonment.
On April 11, 2012, Petitioner filed a motion to stay his
criminal court proceedings. (D.E. 3.) The Anti-Injunction Act, 28
U.S.C. § 2283, provides that “[a] court of the United States may
not grant an injunction to stay proceedings in a State court except
as expressly authorized by Act of Congress, or where necessary in
aid

of

its

jurisdiction,

or

to

protect

or

effectuate

its

judgments.” The Anti-Injunction Act specifically prohibits this
Court from issuing an injunction in Anderson’s state criminal
cases. The motion to stay criminal court proceedings (D.E. 3) is
DENIED.
Petitioner Anderson submitted his allegations on the form
“Petition Under 28 U.S.C. § 2254.” Section 2254 is inapplicable to
Anderson’s claims because he is not yet in custody “pursuant to the
4

judgment of a State court.”

28 U.S.C. § 2254(b)(1).

Anderson has

not yet been sentenced and has no judgment of conviction.

The

petition contains numerous complaints that Petitioner’s pending
criminal proceedings are deficient. Consideration of this habeas
petition

would

proceedings.

interfere

with

his

ongoing

state

criminal

See generally Ex Parte Royall, 117 U.S. 241 (1886).

The Court construes Petitioner’s claims as a petition for
habeas corpus under 28 U.S.C. § 2241, which affords a remedy for
pre-trial detainees. For a state prisoner who challenges "the very
fact or duration of his physical imprisonment and [who] seeks . .
. immediate release or a speedier release from that imprisonment,
[the] sole federal remedy is a writ of habeas corpus."

Hadley v.

Werner, 753 F.2d 514, 516 (6th Cir. 1985)(quoting Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973)).

Twenty-eight U.S.C. § 2241

affords a remedy under limited circumstances for state pre-trial
detainees,

but

not

under

the

circumstances

alleged

by

this

Petitioner.

See Braden v. 30th Jud. Cir. Ct. of Kentucky, 410 U.S.

484 (1973).

See also Norton v. Parke, 892 F.2d 476, 478 n.5 (6th

Cir. 1989); Atkins v. State of Mich., 644 F.2d 543, 546 & n.1 (6th
Cir. 1981).

Braden does not permit a prisoner to circumvent state

remedies or the state criminal process by resolving in a federal
habeas forum issues or defenses that should first be presented to
a state court in defense of a pending prosecution.
F.2d at 479 n.6; Atkins, 644 F.2d at 546-47.
the

"federal

court

should

abstain

from

the

Norton, 892

At the very least,
exercise

of

that

jurisdiction if the issues raised in the petition may be resolved
5

either by trial on the merits in the state court or by other state
procedures available to the petitioner."

Dickerson v. State of

La., 816 F.2d 220, 225 (5th Cir. 1987).
In this case, the Petitioner has not exhausted his state
remedies.

Indeed, he has not yet been sentenced.

A petitioner has

failed to exhaust his available state remedies if he has the
opportunity to raise his claims by any available state procedure.
Preiser, 411 U.S. at 494-95.

To exhaust his state remedies, the

applicant must have presented the very issue on which he seeks
relief from the federal courts to the courts of the state that he
claims is wrongfully confining him.

Picard v. Connor, 404 U.S.

270, 275-76 (1971); Dickerson, 816 F.2d at 228.
Boerckel,

526

U.S.

838,

845

(1999)(holding

Cf. O'Sullivan v.
that

exhaustion

requirement mandates presentation of all claims to state court
through

discretionary

review

process).

Petitioner

has

the

continuing right to assert any claims or defenses in the state
trial court and on direct appeal from any final judgment of
conviction.
Accordingly, "it appears from the application that the
applicant or person detained is not entitled" to any relief.
U.S.C. § 2243.
issue.

28

An order for Respondent to show cause need not

The petition for writ of habeas corpus is DENIED.

The

motions to convene a special grand jury (D.E. 4), for a restraining
order (D.E. 7), and to be released on recognizance (D.E. 8) are
DENIED as MOOT.

6

The Court must also decide whether Petitioner is entitled
to a certificate of appealability.

Pursuant to 28 U.S.C. §

2253(c)(1)(A), "an appeal may not be taken to the court of appeals
from the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court"

unless

appealability.

the

petitioner

obtains

a

certificate

of

Pursuant to § 2253(c)(2), a court may issue a

certificate of appealability "only if the applicant has made a
substantial showing of the denial of a constitutional right."
Although "this obviously does not require that the Petitioner show
that

he

should

nonetheless

prevail

"demonstrate

on

the

that

merits,"

the

issues

the

petitioner

must

are

debatable

among

jurists of reason; that a Court could resolve the issues in a
different manner; or that the questions are adequate to deserve
encouragement to proceed further."
890, 893 (1983).

Barefoot v. Estelle, 463 U.S.

See Lyons v. Ohio Adult Parole Auth., 105 F.3d

1063, 1069-73 (6th Cir. 1997)(holding that district courts should
apply the standards set forth in Barefoot when determining whether
to issue a certificate of appealability).
In this case, Petitioner presents clearly unexhausted
claims

that

would

interfere

with

an

ongoing

state

criminal

proceeding. Petitioner cannot present on appeal a question of some
substance about which reasonable jurists could differ.

The Court,

therefore, declines to issue a certificate of appealability.
The Court must also decide whether Petitioner is entitled
to proceed in forma pauperis on appeal.
7

The Sixth Circuit has

concluded that the various filing fee requirements and good faith
certifications of amended § 1915 do not apply to § 2254 cases, but
it

has

not

resolved

in

a

published

requirements apply to § 2241 cases.

opinion

whether

those

Kincade v. Sparkman, 117 F.3d

949, 951-52 (6th Cir. 1997). Cf. McGore v. Wrigglesworth, 114 F.3d
601

(6th

Cir.

1997)(instructing

courts

regarding

proper

PLRA

procedures in prisoner civil-rights cases, without mentioning §
2241 petitions).
The Tenth Circuit, however, has held that the provisions
of the Prison Litigation Reform Act of 1995, 28 U.S.C. §§ 1915(a)(b),

do not apply to habeas cases of any sort or to § 2255

motions.

See McIntosh v. United States Parole Comm'n, 115 F.3d

809, 810 (10th Cir. 1997); United States v. Simmonds, 111 F.3d 737,
743 (10th Cir. 1997).

An unpublished Sixth Circuit opinion has

adopted this approach in affirming a decision from this district.
Graham v. U.S. Parole Com'n, No. 96-6725, 1997 WL 778515 (6th Cir.
Dec. 8, 1997), aff'g, Graham v. U.S., No. 96-3251-Tu (W.D. Tenn.
Dec. 4, 1996).

Because the Court finds the reasoning of McIntosh

persuasive, and because the Court finds that this conclusion
naturally follows from the Sixth Circuit's decision in Kincade, the
Court concludes that the PLRA does not apply to § 2254 or § 2241
petitions.
Pursuant to Kincade, a petitioner must seek leave to
proceed in forma pauperis from the district court under Fed. R.
App. P. 24.

Fed. R. App. P. 24(a)(3) provides that a party who was

permitted to proceed in forma pauperis in the district court may
8

proceed on appeal in forma pauperis unless the district court
certifies that an appeal would not be taken in good faith or
otherwise denies leave to appeal in forma pauperis.
for

the

same

reasons

the

Court

denies

a

In this case,

certificate

of

appealability, the Court determines that any appeal would not be
taken in good faith.

It is therefore CERTIFIED, pursuant to Fed.

R. App. P. 24(a), that any appeal in this matter would not be taken
in good faith, and leave to appeal in forma pauperis is DENIED.2
IT IS SO ORDERED this 24th day of August, 2012.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

2

If Petitioner files a notice of appeal, he must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days of the
date of entry of this order. See Fed. R. App. P. 24(a)(5).

9