Bell v. Uttecht

Filing 43

ORDER DECLINING to recuse voluntarily; REFERRING the motion for recusal to the Chief Judge for decision; and STAYING all pending motions and permitting no further motions, pending resolution of the recusal issue; as to the Petitioner's 40 MOTION for Recusal, signed by Magistrate Judge Karen L Strombom. (GMR- cc: petitioner)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 REGINALD BELL, SR., 6 7 8 9 No. C12-5215 RBL/KLS Petitioner, v. ORDER REGARDING PETITIONER’S MOTION TO RECUSE JEFFREY UTTECHT, Respondent. 10 Before the Court is Petitioner’s Motion to Recuse. ECF No. 40. Petitioner requests that 11 the undersigned recuse herself because he claims, she erroneously recommended that his habeas 12 petition be denied based on the admission of a state court SODA (stay out of area of drug 13 activity) Order. Mr. Bell contends that the SODA order is false, was never issued, and that the 14 15 16 17 undersigned should have compelled production of the Order. Id. DISCUSSION Pursuant to 28 U.S.C. § 455(a), a judge of the United States shall disqualify herself in any 18 proceeding in which her impartiality “might reasonably be questioned.” A federal judge also 19 shall disqualify herself in circumstances where she has a personal bias or prejudice concerning a 20 party or personal knowledge of disputed evidentiary facts concerning the proceeding. 28 U.S.C. 21 22 23 24 25 § 455(b)(1). Pursuant to 28 U.S.C. § 144: 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 favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. 26 ORDER REGARDING RECUSAL MOTION - 1 1 Under both 28 U.S.C. §144 and 28 U.S.C. § 455, recusal of a federal judge is appropriate 2 if “a reasonable person with knowledge of all the facts would conclude that the judge’s 3 impartiality might reasonably be questioned.” Yagman v. Republic Insurance, 987 F.2d 622, 626 4 (9th Cir.1993). This is an objective inquiry concerned with whether there is the appearance of 5 bias, not whether there is bias in fact. Preston v. United States, 923 F.2d 731, 734 (9th 6 7 Cir.1992); United States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980). In Liteky v. United 8 States, 510 U.S. 540 (1994), the United States Supreme Court further explained the narrow basis 9 for recusal: 10 11 12 13 14 15 16 [J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. at 555. This Court makes rulings in each case based upon the issues presented by the parties or 17 upon sua sponte review by the Court. The undersigned has no personal bias or reason to be 18 19 partial to one side or the other in this matter. In the Report and Recommendation dated March 20 11, 2013, the undersigned found that the trial court’s limited admission of a SODA Order did not 21 render Mr. Bell’s trial fundamentally unfair and that he was not entitled to relief on Claim 4 of 22 his habeas petition. ECF No. 39, pp. 13-18. Mr. Bell claims that the undersigned erroneously 23 characterized the SODA Order in its earlier Report and Recommendation dated August 30, 2012. 24 However, the earlier Report and Recommendation did not address the merits of Claim 4. ECF 25 26 ORDER REGARDING RECUSAL MOTION - 2 1 No. 25. The undersigned finds no reason to recuse herself voluntarily from this case, and 2 declines to do so. 3 4 CONCLUSION There is no reasonable basis for a voluntary recusal in this instance. However, 5 Petitioner’s motion shall be referred to the Chief Judge for a determination of its merits. Local 6 7 8 9 Rules W.D. Wash. 3(e). Accordingly it is hereby ORDERED that the undersigned DECLINES to recuse voluntarily. Petitioner’s motion for recusal of the undersigned is REFERRED to Chief Judge 10 Marsha J. Pechman for decision and the Clerk of the Court is directed to place the motion for the 11 recusal of the undersigned on Judge Pechman’s motion calendar. 12 This action, and all motions currently pending before the Court are hereby STAYED 13 pending resolution of the recusal issue. No further motions shall be filed in this matter until the 14 15 16 17 18 stay is lifted. Any motion filed while the matter is stayed shall not be considered and shall be dismissed. The Clerk of the Court shall send a copy of this Order to Petitioner and to counsel for Respondent. 19 20 21 22 23 DATED this 25th day of March, 2013. A Karen L. Strombom United States Magistrate Judge 24 25 26 ORDER REGARDING RECUSAL MOTION - 3

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