Reesman v. Haynes

Filing 38

ORDER Declining to Recuse and Referring the 31 MOTION for Recusal to Chief Judge Martinez. This action and all motions currently pending before the Court are hereby STAYED pending resolution of the recusal issue. No further motions shall be filed in this matter until the stay is lifted. Signed by Judge Theresa L Fricke. **5 PAGE(S), PRINT ALL**(Joel Reesman, Prisoner ID: 316821)(CMG)

1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

4
5
6

JOEL PAUL REESMAN,
Case No. C16-5925 BHS-TLF

7
8
9

Petitioner,

RON HAYNES,
Respondent.

10
11

ORDER DECLINING TO RECUSE
AND REFERRING PETITIONER’S
MOTION TO RECUSE

v.

This matter comes before the Court on Petitioner Joel P. Reesman’s filing of an Affidavit

12

of Prejudice in which he requests that Magistrate Judge Theresa L. Fricke recuse herself from

13

this case. Petitioner cites an “inability to render fair judgement and prejudice in favor of the

14

government” as justification for his request. Dkt. 31 at 1. The undersigned hereby finds and

15

orders as follows:

16

On October 29, 2017, Petitioner Reesman filed a motion requesting that the Court permit

17

him to “fully brief” two other exceptions to the statute of limitations, which he asserts he did not

18

fully brief in his Petition or response to the motion to dismiss. In particular, the petitioner asked

19

for leave to expand his arguments that the AEDPA time bar should not apply because a mental

20

illness made him not competent to plead guilty or stand trial and because the trial judge failed to

21

sua sponte order a mental examination. Dkt. 27. The undersigned denied this motion because

22

Petitioner did not identify a persuasive reason for this court to order further briefing on the same

23

issues he had already addressed. Dkt. 30.

24
25
ORDER DECLINING TO RECUSE AND REFERRING
PETITIONER’S MOTION TO RECUSE - 1

1

Shortly after this Court denied Petitioner’s request for further briefing, Petitioner filed an

2

Affidavit of Prejudice in which he requests the recusal of Magistrate Judge Theresa L. Fricke.

3

Petitioner contends that the undersigned is prejudiced in favor of the government and thus unable

4

to render a fair judgment and alleges that “there is no proof anywhere that Judge Fricke

5

considered any of his claims ever.” Dkt. 31 at 2. Petitioner alleges that Judge Theresa L. Fricke

6

should recuse herself under 28 U.S.C. § 144.

7

A judge of the United States shall disqualify herself from a proceeding in which her

8

impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a). In addition, a judge of the

9

United States shall disqualify herself under circumstances where she has a personal bias or

10

prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the

11

proceeding. 28 U.S.C. § 455(b)(1). Normally, a judge should not be recused when the only basis

12

for the motion to recuse is that the judge made adverse rulings in the case where the party seeks

13

disqualification of the judge. Liteky v. U.S., 510 U.S. 540, 555 (1994); In re Marshall, 721 F.3d

14

1032 (9th Cir. 2013).

15

Pursuant to 28 U.S.C. § 144, a judge shall proceed no further “whenever a party to any

16

proceeding in a district court files a timely and sufficient affidavit that the judge before whom

17

the matter is pending has a personal bias or prejudice either against [the filing party] or in favor

18

of any adverse party.” In addition, 28 U.S.C. § 455 reiterates the “grounds for recusal set forth

19

in § 144 . . . [and] (1) made them applicable to all justices, judges, and magistrates (and not just

20

district judges), and (2) placed the obligation to identify the existence of those grounds upon the

21

judge himself, rather than requiring recusal only in response to a party affidavit.” Liteky, 510

22

U.S. at 548 (emphasis in original). Under both §144 and § 455, recusal of a federal judge is

23

appropriate for either actual bias or appearance of bias, if “a reasonable person with knowledge

24
25
ORDER DECLINING TO RECUSE AND REFERRING
PETITIONER’S MOTION TO RECUSE - 2

1

of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”

2

Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir.1993). This is an objective test.

3

Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1992).

4
5

United States District Court for the Western District of Washington Local Civil Rule,
LCR 3(f) additionally provides that:

6

(f) Motions to Recuse

7

10

Whenever a motion to recuse directed at a judge of this court is filed pursuant to
28 U.S.C. § 144 or 28 U.S.C. § 455, the challenged judge will review the motion
papers and decide whether to recuse voluntarily. If the challenged judge decides
not to voluntarily recuse, he or she will direct the clerk to refer the motion to the
chief judge, or the chief judge’s designee. If the motion is directed at the chief
judge, or if the chief judge or the chief judge’s designee is unavailable, the clerk
shall refer it to the active judge with the highest seniority.

11

Courts have held that, generally, personal bias or prejudice under § 144 or § 455 must

8
9

12

stem from an extrajudicial source. Liteky, 510 U.S. at 544 (1994); U.S. v. Hernandez, 109 F.3d

13

1450, 1454 (9th Cir. 1997). Thus “judicial rulings alone almost never constitute a valid basis for

14

a bias or partiality motion” because they cannot show reliance upon an extrajudicial source.

15

Liteky, 510 U.S. at 555. Further, “opinions formed by the judge on the basis of facts introduced

16

or events occurring in the course of the current proceedings, or of prior proceedings, do not

17

constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or

18

antagonism that would make fair judgment impossible.” Id.

19

Thus, Petitioner would need to demonstrate bias stemming from an extrajudicial source

20

or a deep-seated favoritism to provide grounds for recusal under § 144 or § 455. See U.S. v.

21

Sibla, 624 F.2d 864, 868-869 (9th Cir. 1980) (court should initially determine whether the facts

22

alleged in the affidavit submitted by the party seeking recusal are legally sufficient to support the

23

motion, and refer the motion to another judge to determine the merits).

24
25
ORDER DECLINING TO RECUSE AND REFERRING
PETITIONER’S MOTION TO RECUSE - 3

1

Petitioner has failed to offer evidence of any extrajudicial source for the undersigned

2

Magistrate Judge’s alleged bias. Nor does he allege any facts or instances demonstrating a “deep-

3

seated bias” that would make fair judgment impossible. Further, Petitioner has done nothing

4

more than make conclusory allegations, which “are insufficient to support a claim of bias or

5

prejudice such that recusal is required.” U.S. v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566

6

(9th Cir. 1995) (internal quotations omitted).

7

The undersigned has done nothing that would create the appearance of personal

8

bias, nor does the undersigned have any reason to be partial to one side or the other in

9

this matter. A reasonable person with knowledge of all the facts would not conclude that

10

the undersigned’s impartiality might reasonably be questioned. Considering the objective

11

test, the undersigned finds that Mr. Reesman’s affidavit of prejudice is legally

12

insufficient, and there is no merit to the motion to recuse. The undersigned declines to

13

recuse herself from this case. See Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th

14

Cir.1993).

15
16

CONCLUSION
There is no reasonable basis for recusal in this instance. In accordance with LCR 3(f),

17

Petitioner’s motion shall be referred to the Chief Judge for a determination of its merits.

18

Accordingly the undersigned DECLINES to recuse voluntarily. Plaintiff’s motion for recusal of

19

the undersigned is REFERRED to Chief Judge Ricardo Martinez for decision and the Clerk of

20

the Court is directed to place the motion for the recusal of the undersigned on Judge Martinez’s

21

motion calendar.

22
23

This action and all motions currently pending before the Court are hereby STAYED
pending resolution of the recusal issue. No further motions shall be filed in this matter until the

24
25
ORDER DECLINING TO RECUSE AND REFERRING
PETITIONER’S MOTION TO RECUSE - 4

1

stay is lifted. Any motion filed while the matter is stayed shall not be considered and shall be

2

dismissed. The Clerk of the Court shall send a copy of this Order to Plaintiff.

3
4

Dated this 29th day of January, 2018.

5
6
7

A

8

Theresa L. Fricke
United States Magistrate Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ORDER DECLINING TO RECUSE AND REFERRING
PETITIONER’S MOTION TO RECUSE - 5