Webb v. Figiel

Filing 52

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,
Petitioner,
v.

Civil Action No. 5:16CV44
(STAMP)

STEVEN FIGIEL, Acting Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
DENYING PETITIONER’S MOTION TO DISQUALIFY
AND RECUSE THE UNDERSIGNED JUDGE
AND OVERRULING THE PETITIONER’S OBJECTIONS
I.

Background

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.

That petition,

however, is not at issue regarding this memorandum opinion and
order.

Rather,

at

issue

now

is

the

petitioner’s

motion

to

disqualify and recuse the undersigned judge and his objections to
a prior order entered by United States Magistrate Judge Robert W.
Trumble.

ECF No. 51.

Previously, the petitioner filed a motion to disqualify and
recuse Magistrate Judge Trumble from presiding over his civil
action.

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.

As to

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.
II.

Applicable Law

Under 28 U.S.C. §§ 144 and 455, a litigant may request the
recusal

of

a

federal

(“§ 144”) states

judge.

In

particular,

28

U.S.C.

§

the following:

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

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144

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 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
himself

in

any

proceeding

reasonably be questioned.”

in

which

his

impartiality

might

Motions based on either § 144 or § 455

must be more than conclusory in nature or void of facts.

Usually,

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.”).

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III.

Discussion

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.
Cir. 1973).

United States v. Thompson, 483 F.2d 527 (3d

Mere conclusions are insufficient.

Instead, the

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.

His affidavit

of disqualification is insufficient so as to satisfy the applicable
legal standard.

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)).

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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
the

judge’s

impartiality,

not

whether

the

judge

is

in

fact

impartial.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987) (citing
Rice

v.

McKenzie,

581

F.2d

1114,

1116

(4th

Cir.

1978)).

Furthermore, the alleged bias under § 455 must “derive from an
extra-judicial

source.”

In

re

Beard,

811

F.2d

at

828.

Nonetheless, judges are not to recuse themselves lightly under
§ 455(a).

United States v. Snyder, 235 F.3d 42, 45 (1st Cir.

2000).
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).
arguments

under

§

455

lack

Therefore, the petitioner’s

merit.

Finally,

regarding

his

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

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objections lack merit.

Therefore, the petitioner’s motion to

disqualify and recuse the undersigned judge is hereby DENIED, and
his objections are OVERRULED.
IV.

Conclusion

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.
DATED:

July 19, 2016

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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