Canslor v. Clarke

Filing 59

MEMORANDUM ORDER. The Court ADOPTS 56 Report and Recommendations and OVERRULES Petitioner's Objections in full. As such, the Court DENIED and DISMISSES WITH PREJUDICE 52 Motion for Relief from Judgment, and DENIES AS MOOT 55 Motion for Summary Judgment. Further, the Court DENIES 57 Motion for Recusal under both 28 U.S.C. § 144 and 28 U.S.C. § 455(a) and (b)(1). Finding that Petitioner has not made a "substantial showing of the denial of a constitutional right,&q uot; a certificate of appealability is DENIED. Petitioner is ADVISED that if he intends to appeal the denial of his Motion for Recusal, or pursuant an appeal of his Motion for Relief from Judgment by seeking a certificate of appealability from the Un ited States Court of Appeal for the Fourth Circuit, he must forward a written notice of appeal to the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia, 23510 within thirty (30) days from the date of this Memorandum Order. The Clerk is DIRECTED to forward a copy of this Memorandum Order to pro se Petitioner and all counsel of record. Signed by District Judge Mark S. Davis on 6/29/2016. Copies mailed 6/30/2016. (jmey, )

FILED
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGI1 [IA
Norfolk Division

JUN 2 9 2016

CLERK, US DISTRICT COURT
NORFOLK. VA

JARVIS L. CANSLOR,
Petitioner,

Civil Case No.: 2:13-cv-116
v.

HAROLD W. CLARKE, Director,

Virginia Department of
Corrections,

Respondent

MEMORANDUM ORDER

This matter is before the Court on pro se Petitioner's

Motion for Relief from Judgment, pursuant to Federal Rule of
Civil Procedure 60(b)(3), ECF No. 52, related to the Court's

Final Order denying and dismissing Petitioner's Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254, Petitioner's
Motion for Summary Judgment on the Motion for Relief from

Judgment, ECF No. 55, and Petitioner's Motion for Recusal of
United States Magistrate Judge Lawrence R. Leonard, ECF No. 57.

The Court will address Petitioner's Motion for Relief and
related Motion for Summary Judgment together, and will then
address Petitioner's Motion for Recusal.

I. Motion for Relief and Motion for Summary Judgment

This Court referred Petitioner's Motion for Relief from

judgment and Motion for Summary Judgment to a United States

Magistrate Judge, pursuant to 28 U.S.C. .636(b)(1)(B) and (C) ,
Federal Rule of Civil Procedure 72(b), Eastern District of
Virginia Local Rule 72, and the April 2, 2002, Standing Order on
Assignment of Certain Matters to the United States Magistrate
Judges, for report and recommendation. On February 29, 2016,
the Magistrate Judge issued a Report and Recommendation, ECF No.
56, recommending that Petitioner's Motion for Relief from
judgment be DENIED and DISMISSED WITH PREJUDICE and recommending
that Petitioner's related Motion for Summary Judgment on the
Motion for Relief from Judgment be DISMISSED AS MOOT.

By copy of the Report and Recommendation, the parties were
advised of the right to file written objections to the findings
and recommendations made by the Magistrate Judge.

On March 18,

2016, Petitioner timely filed his Objections to the Magistrate

Judge's Report and Recommendation.
raised seven objections,

ECF No. 58.

objecting to:

(1)

Petitioner

the Magistrate

Judge's failure to recuse himself in this matter; (2) the
Magistrate Judge's failure to consider Petitioner's Request for
Admission, ECF NO. 54; (3) the Magistrate Judge's alternative
determinations

regarding

jurisdiction,

merits of Petitioner's motions;

(4)

timeliness,

and

the

the Magistrate Judge's

determination that Petitioner's motions were untimely; (5) the
Court's

implicit

bias

against

Petitioner

as

a pro

se,

incarcerated litigant; (6) the Magistrate Judge's failure to

substantively address Petitioner's fraud allegations; and (7)

the Magistrate Judge's failure to address the unexhausted "Claim
P» in Petitioner's § 2254 Petition.

Respondent has not filed

any objections, nor has he responded to Petitioner's Objections.
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the

undersigned has reviewed de novo the Magistrate Judge's Report
and Recommendation and the objections filed thereto.

After such

review, the Court ADOPTS the findings and recommendations set
forth in the February 29, 2016 Report and Recommendation of the
United States Magistrate Judge.

Petitioner's first objection,

regarding recusal of the Magistrate Judge, is OVERRULED for the
reasons stated below addressing Petitioner's Motion for Recusal.
Petitioner's second objection,

regarding Petitioner's Request

for Admission, is OVERRULED because Petitioner is not authorized
to seek discovery in this matter and the Court need not consider
such unauthorized requests.

See Fed.

R.

Civ.

P.

36(a)(1)

(allowing a party to file requests for admission in a "pending
action"); R. Governing § 2254 Proceedings in U.S. Dist. Cts. 6

(requiring a § 2254
discovery).

petitioner to seek

leave to conduct

Petitioner's third and fourth objections, regarding

the Magistrate Judge's alternative grounds for dismissal, are
OVERRULED because the Report and Recommendation addressed three

separate grounds for dismissal of Petitioner's motions-any one
of which is sufficient to support dismissal-and Petitioner has

not provided any facts undermining such findings.

fifth objection,

Petitioner's

regarding the Court's implicit bias,

is

OVERRULED because Petitioner has not been subjected to unfair or
unreasonable constraints due to his pro se or incarcerated
status.

instead,

the

Court

has

"liberally

construed"

Petitioner's filings, throughout this litigation, as it must

when dealing with a pro se litigant.
551 U.S. 89, 94 (2007).

See Erickson v. Pardus,

Petitioner's sixth objection, regarding

his fraud allegations, is OVERRULED because the Court need not
consider

such

allegations

when,

as

found

in

Petitioner's claim for relief is untimely,

this

matter,

the Court lacks

jurisdiction, and Petitioner is not entitled to relief on his
Motion for Relief from Judgment.

Finally, Petitioner's seventh

objection, regarding his "Claim P," is OVERRULED because such
objection was previously raised and the Court overruled such
objection in its Final Order, ECF No. 41.

Therefore,

the Court DENIES and DISMISSES WITH PREJUDICE

Petitioner's Motion for Relief from Judgment, ECF No. 52, and
DENIES AS MOOT the Petitioner's Motion for Summary Judgment on
the Motion for Relief from Judgment, ECF No. 55.
II. Motion for Recusal

Petitioner filed his Motion for Recusal on March 18, 2016,

simultaneous to his Objections to the Magistrate Judge's Report
and Recommendation.

Petitioner's Motion for Recusal argues that

the Magistrate Judge should be disqualified, pursuant to 28
U.S.C. § 144, for (1) bias arising from "undisclosed personal
and/or professional relationships with the Virginia [Department]
of corrections executive personnel and Virginia Beach judicial

personnel," (2) exhibiting prejudice and favoritism through
"actions, tone in statements," and (3) disregarding some of
Petitioner's arguments. Mot. for Recusal 11 1-3. Further,
Petitioner includes in his Objections, a concurrent request,

pursuant to 28 U.S.C. §455(a) and (b)(1), that the Magistrate
judge recuse himself.
Respondent has not responded to
Petitioner's Motion for Recusal.
A. Legal Standard

Petitioner has asserted that Magistrate Judge Lawrence R.

Leonard should be recused under both 28 U.S.C. § 144 and 28
U.S.C. § 455. Both federal statutes, § 144 and § 455, address

the potential disqualification of federal presiding judges from
matters pending before them. Section 144 "provides a procedure

by which a party can timely file an affidavit stating the
presiding judge's personal bias or prejudice. [Section] 455, on
the other hand, is self-executing, requiring a presiding judge

to disqualify himself under certain circumstances."

Kidd v.

n.Ikon Shield Claimants Trust, 215 B.R. 106, 108 (Bankr. E.D.

Va. 1996) (citing In re Beard, 811 F.2d 818, 827 n.15 (4th Cir.
1987)).
As each statute presents an independent, although

substantively similar, basis on which to seek recusal, the Court
will address Petitioner's Motion for Recusal under each statute.

See n^d States v. Paul, 748 F.2d 1204, 1210 (8th Cir. 1984)
(noting that "grounds for disqualification set out in [S 144 and
S455] are quite similar, [and] both may be considered together"
(internal citations omitted)).
1. 28 U.S.C.

§ 144

Title 28, Section 144 states that:

Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that
the judge before whom the matter is pending has a

personal bias or prejudice either against him or in
ravor of any adverse party, such judge shall proceed
no

further

therein,

but another judge shall be

assigned to hear such proceeding.

The affidavit shall state the facts and the reasons

for the belief that bias or prejudice exists, and
shall be filed not less than ten days before the

beginning of the term at which the proceeding is to be

heard, or good cause shall be shown for failure to
file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by
certificate of counsel of record stating that it is
made in good faith.

28 U.S.C. § 144.

"When an affidavit has been filed pursuant to

S 144, a presiding judge is limited to a determination of
whether the affidavit (1) is in compliance with the procedural

requirements of that section and (2) alleges with specificity
that the judge in question has a 'personal bias or prejudice
either against [the party filing the affidavit] or in favor of
an adverse party.'"

wambach v. Hinkle, No. I:07cv714, 2007 WL

2915072, at *l (E.D. Va. Oct. 4, 2007) (unpublished) (quoting
Kidd v. Greyhound Lines, Inc., No. 3:04cv277, 2004 WL 3756420,

*3 (E.D. Va. Sept. 23, 2004) (unpublished)); Sine v. Local 992
int'l. Bhd. of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989).

The procedural requirements of § 144 are that a litigant
must file a "timely and sufficient affidavit," "accompanied by
certificate of counsel of record stating that it is made in good
faith."1

28 U.S.C. § 144.

However, the requirement to file a

certificate of good faith with a § 144 Motion for Recusal may be

waived for pro se litigants, as such requirement "is met by the

operation of Federal Rule of Civil Procedure 11, which requires
pro se parties to submit pleadings, motions, and other papers in
good faith."

Wambach, 2007 WL 2915072, at *1 (citing Kidd, 2004

WL 3756420, at *l-2) . Thus, an affidavit in support of a § 144
Motion for Recusal need only be timely and sufficient.

With respect to the sufficiency of the affidavit,
affidavit,

accepted

as

true,

must

clearly

"the

delineate

1 Our Court of Appeals has stated that "[a] judge against whom an
affidavit under § 144 is filed must pass on the legal sufficiency of
the facts alleged." Sine v. Local No. 992 Int'l Bhd. Of Teamsters,
882 F 2d 913, 914 (4th Cir. 1989).
However, Sine addressed the
recusal of a United States District Judge, the presiding judge in the

matter and appointed under Article III. Thus, as the undersigned is
the "presiding judge" in this matter and the limited referral to the
Magistrate Judge in this matter has been completed, the Court may also
review Petitioner's Motion for Recusal.
No
4:15cvl9,
2015
WL
10690451

See, e.g., Keeler v. Chang,
(E.D.
Va.
August
28,

2015) (unpublished) ; White v. Old Republic Nat. Title Ins., No. 1:1207965 2015 WL 236679 (S.D.W.V. January 16, 2015) (unpublished);
Burgess v. eBay, Inc., No. 1:11-CV-193, 2013 WL 3716872 (M.D.N.C. July
12, 2013)

(unpublished) .

circumstances showing personal bias or prejudice."

Hirschkop v.

v*. State Bar Ass'n, 406 F. Supp. 721, 725 (E.D. Va. 1975)

(internal citations omitted)).

A party seeking recusal must

allege personal bias or prejudice caused by an extrajudicial
source other than what the judge has learned or experienced from

his participation in the case."

Sine, 882 F.2d at 914 (citing

United State* v. Grinnell Corp., 384 U.S. 563 (1966); Shaw v.

Martin, 733 F.2d 304, 308 (4th Cir. 1984)).

Further, "[a] s a

court is presumed to be impartial, the facts alleged in the
affidavit must

be

'strictly construed'"

against

seeking recusal, even if such party is pro se.

the party

Wambach, 2007 WL

2915072, at *2 (quoting Kidd, 2004 WL 3756420, at * 3).
2. 28 U.S.C. § 455(a) and (b)(1)
Title 28, Section 455 states that:

(a) Any justice, judge, or magistrate judge of the
United

States

shall

disqualify

himself

in

any

proceeding in which his impartiality might reasonably
be questioned.

(b) He shall also disqualify himself in the following
circumstances:

(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of

disputed

evidentiary

facts

concerning

the

proceeding;

28 U.S.C.A.

§ 455.

Unlike the procedural and sufficiency

requirements of § 144, § 455(a) concerns the "appearance of
partiality." Litekv v. United States, 510 U.S. 540, 558 (1994).

Pursuant to ,455(a), ajudge must disqualify himself or herself
•if a reasonable factual basis exists £or doubting the judge's

partiality." United^^^O^, ,30 F.3d 658, 665 (4th
Cir. 2003). However, recusal is not required when alitigant's
allegations of partiality are -unsupported, irrational, or

highly tenuous speculation." gnit^tates^v^DeTemEle, 162
F.3d 279, 287 <4th Cir. 1998, (citing In^^ited^tates, 666
F.2d 690, 694 (1st Cir. 19811). Section 455(b) requires ajudge
to recuse himself or herself in certain circumstances.

Subsection (1) of I455(b) requires recusal when a judge "has a

personal bias or prejudice concerning a party, or personal
Knowledge of disputed evidentiary facts concerning the
proceeding." 28 U.S.C. 5455(b)(1). Generally, the party
seeking recusal must demonstrate that such bias or prejudice
arose from an extrajudicial source, or, if such bias arose from

ajudge-s official role, the litigant must demonstrate that the
judge displayed a "deep-seated favoritism or antagonism."
Liteky, 510 U.S. at 555.
R.

Discussion

1. Recusal Under 28 U.S.C. S 144

Petitioner has failed to comply with the procedural
timeliness requirement of I144. As noted above, .144 requires
that an affidavit "be filed not less than ten days before the

beginning of the term."

However, "the literal ten-day

requirement no longer applies, since formal terms of court were

long ago abolished."

Wambach, 2007 WL 2915072, at *2 (citing

Kidd, 2004 WL 3756420 at *2) . Thus, with respect to timeliness,
"motions to recuse must be filed at the first opportunity after

discovery of the facts tending to prove disqualification."
United States v. Whorley,

550 F.3d 326,

339 (4th Cir. 2008)

(internal quotations and citations omitted).

Petitioner has

failed to demonstrate that he filed his Motion "at the first

opportunity" after discovery of the Magistrate Judge's alleged
bias or prejudice.

While Petitioner represents in his affidavit

that he

"was not

initially aware of"

alleged

"personal

and/or

the Magistrate Judge's

professional

relationships

with

Virginia Dept. of Corrections executive personnel and Virginia
Beach judicial personnel," Mot. for Recusal 1 1, Petitioner does

not provide any facts
relationships.

explaining when he

Therefore,

Petitioner's

learned of

Motion

for

such

Recusal,

pursuant to 28 U.S.C. § 144, is DENIED as untimely.
Further,

timely,

even

Petitioner

if

has

Petitioner's

failed

to

Motion

allege

for

Recusal

sufficient

was

facts

demonstrating that the Magistrate Judge's alleged "personal bias

or prejudice" arose from an extrajudicial source.

Petitioner's

two-page Motion for Recusal fails to include specific facts
demonstrating

personal

bias

or

prejudice,

including

only

conclusory allegations of the Magistrate Judge's bias against
10

Petitioner. Further, Petitioner fails to demonstrate that such

alleged prejudice stems from an extrajudicial source. As such,
Petitioner has failed to allege with specificity that the

Magistrate Judge has a personal bias or prejudice against
Petitioner.

Thus, even if Petitioner's Motion for Recusal were

timely, such motion is DENIED because Petitioner's allegations
are insufficient.

2. Recusal Under 28 U.S.C. § 455(a) or (b)(1)

Alternatively, Petitioner has failed to demonstrate that

his Motion for Recusal should be granted under either §455(a)
or § 455(b)(1). With respect to subsection (a), Petitioner's
two-page Motion for Recusal provides only conclusory and
unsupported allegations regarding the Magistrate Judge's

appearance of partiality.

Petitioner has alleged no specific

facts that would allow a reasonable person to doubt the
Magistrate Judge's impartiality in this matter.

With respect to subsection (b)(1), Petitioner has failed to

provide facts to support his allegation that the Magistrate
Judge "has a personal bias or prejudice" against him, or
-personal knowledge of [pertinent] disputed evidentiary facts."
Further, Petitioner has not provided facts demonstrating that
such bias, prejudice, or knowledge arose from an extrajudicial
source. Thus, Petitioner's Motion for Recusal under 28 U.S.C.
§ 455(a) and (b)(1) is DENIED.
11

III. Conclusion

For the reasons set forth above, the Court ADOPTS the

Magistrate Judge's Report and Recommendation, ECF No. 56, and
OVERRULES Petitioner's Objections in full, ECF No. 58. As such,
the Court DENIES and DISMISSES WITH PREJUDICE Petitioner's
Motion for Relief from Judgment, ECF No. 52, and DENIES AS MOOT
the Petitioner's Motion for Summary Judgment on the Motion for
Relief from Judgment, ECF No. 55. Further, the Court DENIES
Petitioner's Motion for Recusal, ECF No. 57, under both 28
U.S.C. § 144 and 28 U.S.C. § 455(a) and (b)(1).

As an order denying Rule 60(b) relief on the merits in a

habeas action constitutes the "final order" in such proceeding,
Petitioner is only permitted to appeal if he first obtains a
-certificate of appealability." United States v. McRae, 793
F.3d 392, 399-400 (4th Cir. 2015); Gonzales v. Oates, 619 F.

App'x 231 (4th Cir. Oct. 16, 2015) (unpublished). Here, finding
that Petitioner has not made a "substantial showing of the
denial of a constitutional right," a certificate of

appealability is DENIED.
28 U.S.C. §2253 (c) (2) ; see R.
Governing § 2254 Proceedings in U.S. Diet. Cts. 11(a); Miller-El
v. Cockrell, 537 U.S. 322, 336-38 (2003).

Petitioner is ADVISED that if he intends to appeal the

denial of his Motion for Recusal, or pursue an appeal of his
Motion for Relief from Judgment by seeking a certificate of
12

appealability from the United States court of Appeals for the
Fourth Circuit, he must forward a written notice of appeal to
the Clerk of the United States District Court, United States
courthouse, 600 Granby Street, Norfolk, Virginia, 23510 within
thirty (30) days from the date of this Memorandum Order.
The Clerk is DXRKCTED to forward a copy of this Memorandum
order to oro se Petitioner and all counsel of record.
IT IS SO ORDERED.

Mark S. Davis

UNITED STATES DISTRICT JUDGE
Norfolk, Virginia

June 2S\ , 2016

13