Webb v. Figiel
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S 51 MOTION TO DISQUALIFY AND RECUSE THE UNDERSIGNED JUDGE AND OVERRULING THE PETITIONER'S OBJECTIONS. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/19/16. (copies to counsel via CM/ECF; Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 7/19/2016: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEITH BRYAN WEBB,
Civil Action No. 5:16CV44
STEVEN FIGIEL, Acting Warden,
MEMORANDUM OPINION AND ORDER
DENYING PETITIONER’S MOTION TO DISQUALIFY
AND RECUSE THE UNDERSIGNED JUDGE
AND OVERRULING THE PETITIONER’S OBJECTIONS
The pro se petitioner filed a petition for habeas corpus under
28 U.S.C. § 2241.
In that petition, he asserts that he was
wrongfully convicted of second degree murder.
however, is not at issue regarding this memorandum opinion and
disqualify and recuse the undersigned judge and his objections to
a prior order entered by United States Magistrate Judge Robert W.
ECF No. 51.
Previously, the petitioner filed a motion to disqualify and
recuse Magistrate Judge Trumble from presiding over his civil
ECF No. 43.
The petitioner asserted that the magistrate
judge was biased because the magistrate judge made an adverse
ruling against the petitioner.
After reviewing the petitioner’s
affidavit in support of his motion and the petitioner’s other
filings, Magistrate Judge Trumble denied the petitioner’s motion.
The petitioner has since filed not only objections to the
order denying his motion to disqualify and recuse the magistrate
judge, but has also filed a motion to disqualify and recuse the
undersigned judge under 28 U.S.C. §§ 144 and 455(a).
ECF No. 51.
In his objections, the petitioner asserts that the magistrate judge
is biased against the petitioner based on adverse rulings.
his motion to disqualify and recuse the undersigned judge, he
contends that this Court’s prior rulings were adverse to the
petitioner. Moreover, he attaches an affidavit, in which he claims
this Court should have known that the magistrate judge’s prior
rulings were biased, and that he faces great prejudice based on the
conduct of Magistrate Judge Trumble and the undersigned judge.
For the reasons set forth below, the petitioner’s motion to
recuse the undersigned judge is DENIED, and his objections to
Magistrate Judge Trumble’s prior order are OVERRULED.
Under 28 U.S.C. §§ 144 and 455, a litigant may request the
(“§ 144”) states
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
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
It shall be accompanied by a certificate of
counsel of record stating that it is made in good faith.
Furthermore, 28 U.S.C. § 455(a) (“§ 455”) states that “[a]ny
justice, judge, or magistrate of the United States shall disqualify
reasonably be questioned.”
Motions based on either § 144 or § 455
must be more than conclusory in nature or void of facts.
a showing of extrajudicial personal bias and prejudice must exist,
and adverse rulings alone are generally insufficient to demonstrate
bias and prejudice. See Liteky v. United States, 510 U.S. 540, 555
(1994) (“[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion . . . .
[T]hey . . . can
only in the rarest circumstances evidence the degree of favoritism
or antagonism required [to make fair judgment impossible] when no
extrajudicial source is involved.” (citation omitted)); United
States v. Grinnell Corp., 384 U.S. 563, 583 (1966); Shaw v. Martin,
733 F.2d 304, 308 (4th Cir. 1984) (“Alleged bias and prejudice to
be disqualifying must stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the judge
learned from his participation in the case.”).
In the petitioner’s motion at issue, the petitioner attached
an affidavit of disqualification regarding his claim under § 144.
In that affidavit, the petitioner contends that this Court’s
adverse rulings against him, and this Court’s failure to object to
the magistrate judge’s alleged bias, require the undersigned judge
to be disqualified.
Other than those conclusory allegations and
prior rulings, the petitioner points to neither personal bias nor
extrajudicial conduct by the undersigned judge.
Case law is clear
that affidavits of disqualification must allege personal rather
than judicial bias.
United States v. Thompson, 483 F.2d 527 (3d
Mere conclusions are insufficient.
affidavits must show facts demonstrating the existence of a judge’s
personal bias and prejudice.
Knoll v. Secony Mobile Oil Company,
369 F.2d 425 (10th Cir. 1966).
The petitioner’s claim under § 144 lack merit.
of disqualification is insufficient so as to satisfy the applicable
The contentions in that affidavit are conclusory
at best, and demonstrate neither personal bias nor extrajudicial
conduct by the undersigned judge.
§ 455 are equally misguided.
Moreover, his contentions under
As stated earlier, a “district judge
should recuse himself if his “‘impartiality might reasonably be
questioned.’” United States v. Johnson, 593 F. App’x 186 (4th Cir.
2014)(quoting 28 U.S.C. § 455(a)).
As the United States Court of
Appeals for the Fourth Circuit has said, “[t]he inquiry is whether
a reasonable person would have a reasonable basis for questioning
impartial.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987) (citing
Furthermore, the alleged bias under § 455 must “derive from an
Nonetheless, judges are not to recuse themselves lightly under
United States v. Snyder, 235 F.3d 42, 45 (1st Cir.
In this case, the petitioner has presented no facts or
evidence which would raise a reasonable basis for questioning the
undersigned judge’s impartiality.
The petitioner relies primarily
on adverse rulings made by this Court and the magistrate judge.
The Supreme Court of the United States, however, has stated that
“judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion.”
Liteky, 510 U.S. at 555 (citing
Grinnell Corp., 384 U.S. at 583).
Therefore, the petitioner’s
objections, the petitioner states that he objects to the magistrate
judge’s order denying his motion to recuse the magistrate judge.
The petitioner presents nothing more than conclusions and bald
assertions in support of his objections. Similar to his motion to
disqualify and recuse the undersigned judge, the petitioner’s
objections lack merit.
Therefore, the petitioner’s motion to
disqualify and recuse the undersigned judge is hereby DENIED, and
his objections are OVERRULED.
For the reasons set forth above, the petitioner’s motion to
disqualify and recuse the undersigned judge is DENIED, and his
objections are OVERRULED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
July 19, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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