United States District Court, D. Arizona
DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE
On December 18, 2014, Petitioner Victor Pianka, who is confined in the Eloy Detention Center, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On January 26, 2015, he paid the required $5.00 filing fee. In an Order filed March 17, 2015, the Court dismissed the Petition with leave to amend so Petitioner could allege facts to show that he was still in custody when his Petition was filed.
On April 16, 2015, Petitioner filed a Motion for Disqualification and En Banc Review (Doc. 7), a Motion for Injunctive Relief (Doc. 9), an Amended Petition (Doc. 10), and a Motion to Designate the Amended Petition a Writ of Audita Querela or Coram Nobis (Doc. 11). The Court will deny Petitioner’s Motion for Disqualification and En Banc Review. The Court will also deny the Motion to Designate the Amended Petition a Writ of Audita Querela or Coram Nobis. Petitioner’s Amended Petition will be dismissed, along with this action, and his Motion for Injunctive Relief will be denied as moot. . . . .
I. Motion for Disqualification or En Banc Review
Petitioner has filed a Motion seeking to “disqualify Judge Campbell, Judge Snow, and Magistrate Burns” pursuant to 28 U.S.C. § 455. Section 455(a) provides that a United States judge or magistrate judge “shall disqualify” him or herself in any proceeding in which his or her “impartiality might reasonably be questioned.” Section 455(b)(1) provides that a judge must also disqualify him or herself if he or she “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]” Recusal pursuant to § 455(b) is required only if the bias or prejudice stems from an extra-judicial source, not from conduct or rulings during the course of the proceedings. See Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff’d, 496 U.S. 543 (1990); United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (judge’s prior adverse rulings are insufficient cause for recusal). “[J]udicial rulings alone almost never constitute [a] valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Further, where the judge forms opinions in the courtroom, either in the current proceeding or in a prior proceeding, these opinions “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.” Id.
Petitioner fails to set forth a legitimate basis for recusal under § 455. In his Motion, Petitioner recounts several adverse rulings he received in connection with other proceedings in this District. He also recites a litany of fantastic allegations concerning interactions he purportedly had with members of the judiciary in this District. However, as noted above, adverse rulings are not a basis upon which the Court’s impartiality might reasonably be questioned for purposes of § 455(a). And Petitioner’s irrational allegations concerning prior interactions with members of the court do not provide a reasonable basis for questioning the impartiality of any of the Judges identified in his Motion. Accordingly, disqualification is not warranted.
In the alternative, Petitioner requests that “En Banc review . . . be taken in this case” – and in all other actions Petitioner has pending in this Court – “to ensure that fair[, ] constitutional judicial determinations are taken.” Neither the Federal Rules of Civil Procedure nor the Local Rules of this court provide for the “en banc” review that Petitioner seeks. And even if such relief were available to Petitioner, as noted above, he has no valid basis for questioning the impartiality of this Court. Accordingly, Petitioner’s Motion for Disqualification and Motion for En Banc Review will be denied in its entirety.
II. Motion to Designate as Writ of Audita Querela or Error Coram Nobis
The common law writs of audita querela and coram nobis can be used to “fill in the gaps” in post-conviction remedies. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). As discussed below, however, neither form of relief is available here. Accordingly, Petitioner’s Motion to Designate the Amended Petition a Writ of Audita Querela or Coram Nobis will be denied.
A. Writ of Error Coram Nobis
The Ninth Circuit Court of Appeals explained the scope and nature of the federal writ of error coram nobis in Telink, Inc. v. United States, 24 F.3d 42 (9th Cir. 1994):
The writ of error coram nobis affords a remedy to attack an unconstitutional or unlawful conviction in cases when the petitioner already has fully served a sentence. The petition fills a very precise gap in federal criminal procedure. A convicted defendant in federal custody may petition to have a sentence or conviction vacated, set aside or corrected under the federal habeas corpus statute, 28 U.S.C. § 2255. However, if the sentence has been served, there is no statutory basis to remedy the “lingering collateral consequences” of the unlawful conviction. Recognizing this statutory gap, the Supreme Court has held that the common law petition for writ of error coram nobis is available in such situations, even though the procedure authorizing the issuance of the writ was abolished for civil cases by Fed.R.Civ.P. 60(b).
Id. at 45 (internal citations omitted). In Telink, the Ninth Circuit emphasized that “a petition for the writ of error coram nobis is a step in the original criminal proceedings, not the beginning of a separate civil action.” Id. at 46.
Because a petition for writ of error coram nobis is a step in the original criminal proceeding, it may only be maintained in federal court to challenge a federal conviction. This Court may not entertain a writ of error coram nobis to challenge a state criminal conviction because the federal district courts have no direct authority or jurisdiction over original state criminal proceedings and, therefore, cannot take “steps” in furtherance of those proceedings. See Finkelstein v. Spitzer, 455 F.3d 131, 134 (2d Cir. 2006) (a district court “lacks jurisdiction to grant [a writ of coram nobis] with respect to a judgment of a state court”); Obado v. New Jersey, 328 F.3d 716, 718 (3rd Cir. 2003) (“coram nobis is not available in a federal court as a means of attack on a state criminal judgment”); Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982) (“It is well settled that the writ of error coram nobis is not available in federal court to attack state criminal judgments.” (internal quotation marks omitted)); Booker v. Arkansas, 380 F.2d 240, 244 (8th Cir. 1967) (“Relief by the writ . . . is available, if at all, only in the court which rendered the judgment under attack.”), abrogated on other grounds by Braden v. 30th Jud. Circuit Ct. of Kentucky, 410 U.S. 484 (1973); Thomas v. Cunningham, 335 F.2d 67, 69 (4th Cir. 1964) (“Error coram nobis ... cannot issue under the instant proceeding . . . for the judgments are not in the court which Thomas has ...