Salazar v. United States of America

Filing 4

ORDER construing pleading as a motion to recues re: Petitioner's 1 MOTION to set aside, vacate or correct sentence. The court denies Petitioner's motion to recuse and directs the Clerk to refer this order and the motion to Chief Judge Ricardo S. Martinez. Signed by Judge James L. Robart. (PM) cc: petitioner via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANDREW MARK SALAZAR,
Petitioner,

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v.
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UNITED STATES OF AMERICA,
Respondent.

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I.

CASE NO. C17-1770JLR
ORDER CONSTRUING
PLEADING AS A MOTION TO
RECUSE, DENYING THE
MOTION, AND REFERRING
THE MOTION TO THE CHIEF
JUDGE

INTRODUCTION

Before the court is pro se Petitioner Andrew Mark Salazar’s motion to set aside,

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vacate, or correct his sentence pursuant to 28 U.S.C. § 2255. (Mot. (Dkt. # 1).) In the

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course of his motion, Petitioner states that he “questions whether [his] excessive sentence

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was the intent of Congress and whether the trial judge is impartial and unbias [sic], when

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rendering a decision so obviously favorable to the Government.” (Id. at 4.) The court

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liberally construes this statement as a motion to recuse. The court has considered the

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ORDER - 1

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motion to recuse and denies it for the reasons set forth below. The court further directs

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the Clerk to refer the motion to Chief Judge Ricardo S. Martinez for further review.

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II.

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BACKGROUND & ANALYSIS

On April 13, 2015, Petitioner entered into a plea agreement in which he pleaded

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guilty to (1) possession of visual depictions of minors engaged in sexually explicit

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conduct in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2), and (2) receipt of

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visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C.

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§§ 2252(a)(2) and (b)(1). (See United States v. Salazar, No. CR14-0275JLR (W.D.

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Wash.), Plea Agreement (Dkt. # 45) ¶¶ 1.a, 1.b.) On August 3, 2015, the court sentenced

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Petitioner to 238 months of incarceration on both counts to run concurrently. (Id., Min.

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Entry (Dkt. # 58); Judgment (Dkt. # 59).) On November 11, 2017, Petitioner filed his

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present motion to set aside, vacate, or correct his sentence pursuant to 28 U.S.C.

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§ 2255—a portion of which the court liberally construes as a motion to recuse. (See Mot.

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at 4.)

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Under the Local Civil Rules for the Western District of Washington, “[w]henever

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a motion to recuse directed at a judge of this court is filed pursuant to 28 U.S.C. § 144 or

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28 U.S.C. § 455, the challenged judge will review the motion papers and decide whether

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to recuse voluntarily.” Local Rules W.D. Wash. LCR 3(f). “If the challenged judge

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decides not to voluntarily recuse, he or she will direct the clerk to refer the motion to the

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chief judge, or the chief judge’s designee.” Id.

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“The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455
is the same: Whether a reasonable person with knowledge of all the facts would

ORDER - 2

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conclude that the judge’s impartiality might reasonably be questioned.” United States v.

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McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (internal quotation marks omitted). Other

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than stating that he “questions” whether the judge is “impartial and unbias[ed],”

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Petitioner identifies no basis for recusal. (See Mot. at 4.) Specifically, he does not allege

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facts to support the contention that the undersigned judge is presiding over a case in

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which his “impartiality might reasonably be questioned,” McTiernan, 695 F.3d at 891;

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see also 28 U.S.C. § 455(a), “has a personal bias or prejudice concerning a party, or

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personal knowledge of disputed evidentiary facts concerning the proceeding,” id.

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§ 455(b)(1); see also id. § 144, served as a lawyer in this controversy while in private

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practice, id. § 455(b)(2), or has a financial interest in this litigation, id. § 455(b)(3)-(4).

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In addition, the court cannot independently conceive of a basis for recusal. For these

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reasons, the court denies Petitioner’s recusal motion and directs the Clerk to refer this

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order and Petitioner’s motion to Chief Judge Ricardo S. Martinez.

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III.

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CONCLUSION

For the reasons set forth above, the court DENIES Petitioner’s motion to recuse,

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which is contained on page 4 of his motion to set aside, vacate, or correct his sentence

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//

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//

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//

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ORDER - 3

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pursuant to 28 U.S.C. § 2255 (Dkt. #1) and DIRECTS the Clerk to refer this order and

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the motion to Chief Judge Ricardo S. Martinez for further review.

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Dated this 18th day of December, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 4