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Beers v. Maye

United States District Court, Tenth Circuit

July 30, 2013

CHAD BEERS, Petitioner,
v.
CLAUDE MAYE, Respondent.

ORDER

RICHARD D. ROGERS United States District Judge

Petitioner proceeds pro se on a supplemented petition seeking a writ of habeas corpus under 28 U.S.C. § 2241 on allegations of error by the Bureau of Prisons (“BOP”) in the computation of petitioner’s federal sentence. Having reviewed the record, the court considers and decides petitioner’s pending motions.

Petitioner contends he is wrongfully being denied credit for time petitioner claims he was in federal custody following petitioner’s escape while serving a state sentence in Nebraska.

Petitioner filed the instant petition on December 26, 2012. On January 16, 2013, the court ordered respondent to show cause why relief should not be granted, and set the general time frames for respondent’s filing of an Answer and Return, and petitioner’s filing of a traverse. The court also granted petitioner’s motions to file a supporting brief and attachments as limited by the court, and denied petitioner’s motions for appointment of counsel and for the court to order the production of documents.

On February 15, 2013, the court granted petitioner’s motion for further supplementation of the petition, and granted respondent’s motion for an extension of time to file an Answer and Return.

Petitioner thereafter filed a motion for sanctions, a motion for the court to set a bond, a motion for a hearing on petitioner’s bond motion, and a motion for the court to deny any further requests by respondent for additional time to file an answer and return.

Respondent filed an answer and return on March 21, 2013. Petitioner then filed a motion for an extension of time to file a traverse.

On April 1, 2013, the court denied petitioner’s motions for sanctions, and for a bond and hearing. The court found respondent’s filing of an answer and return rendered moot petitioner’s motion for a court order to prevent further extensions. The court also granted petitioner’s motion for an extension of time to file a traverse.

Now before the court are motions petitioner filed April 16, 2013, seeking: the recusal of the undersigned judge (Doc. 19), an order to compel respondent to produce documents (Doc. 20), a stay of the deadline for petitioner’s filing of a traverse (Doc. 21), and reconsideration of the court’s earlier denial of petitioner’s motion for the production of documents (Doc. 22). Also before the court is petitioner’s motions for sanctions and a hearing (Docs. 24 and 25), filed April 30, 2013.

Motion to Recuse (Doc. 19)

In his motion to recuse, petitioner argues that orders entered in this matter demonstrate that the undersigned judge has predetermined the outcome of this habeas action, thus recusal is required under 28 U.S.C. §§ 144, 455(a) and 455(b)(1). Petitioner points to language in the order dated April 1, 2013, wherein the court determined that petitioner had not made an adequate showing of extraordinary circumstances to warrant petitioner’s release on bond pending the resolution of the habeas petition. Petitioner also cites language in the same order wherein the court denied petitioner’s motion for sanctions, finding allegations regarding his receipt of legal mail did not warrant court action to preserve petitioner’s ability to litigate the instant habeas action.

“To prevail on a motion under 28 U.S.C. § 144 to recuse a judge, the litigant must file a timely and sufficient affidavit establishing that the judge has a personal bias or prejudice.” Green v. Branson, 108 F.3d 1296, 1305 (1997). The bias and prejudice must be personal, extrajudicial, and identified by “facts of time, place, persons, occasion, and circumstances.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987)(per curiam). Petitioner submitted no such affidavit in this case, and thus cannot support recusal under § 144. Nor does petitioner allege personal rather than judicial bias that would cause a reasonable person to conclude that the undersigned judge has a special bias against petitioner. Bell v. Chandler, 569 F.2d 556, 559 (10th Cir.1978).

Section 455(a) more broadly provides for disqualification of a judge for apparent bias if the judge’s “impartiality might reasonably be questioned.” U.S. v. Ritter, 540 F.2d 459, 462 (10th Cir.1976). The disqualification of a judge under § 455(a) requires no affidavit in support of recusal. Aronson v. Brown, 14 F.3d 1578, 1581-82 (Fed.Cir.1994). The general purpose of § 455(a) is "to promote public confidence in the integrity of the judicial process." It is not intended to give litigants a veto power over sitting judges. See U.S. v. Cooley, 1 F.3d 985, 993 (10th Cir.1993).

To obtain disqualification of a judge under 28 U.S.C. § 455(a), the movant must show that a reasonable person, knowing all the circumstances, would harbor doubts about the judge's impartiality. Green, 108 F.3d at 1305. Recusal is required only if a reasonable person would believe that the undersigned has displayed such “deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. U.S., 510 U.S. 540, 555 (1994) “[R]umor, speculations, opinions and the like do not suffice." Green, 108 F.3d at 1305 (citing Cooley, 1 F.3d at 993). Nor is petitioner’s disagreement with this court’s prior legal rulings in the instant case. See Liteky, 510 U.S. at 555 ("judicial rulings alone almost never constitute a valid basis" for a § 455(a) motion); Cooley, ...


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