United States District Court, D. Arizona
Honorable Diane J. Humetewa, United States District Judge.
Frank Dale McCray has filed a motion for recusal. (Doc. 33.)
Respondents take no position on the motion, noting only that
the Court denied a similar motion under similar circumstances
in Morris v. Ryan, No. CV-17-00926-PHX-DGC. (Doc.
34.) For the reasons set forth below, the Court will deny the
was sentenced to death in Arizona state court and remains in
custody. He filed a petition for habeas corpus on April 26,
2018. (Doc. 14.) The Honorable Douglas L. Rayes, a United
States District Judge in this district, presided over
McCray's trial and postconviction proceedings while
serving as a Maricopa County Superior Court Judge. Petitioner
argues that the undersigned judge should recuse from this
case because the habeas petition argues that Petitioner's
constitutional rights were violated in state court by Judge
Rayes's rulings, and Judge Rayes is now a colleague on
this Court. (Doc. 33.) Petitioner argues that a reasonable
person would conclude that the undersigned will be unable to
impartially decide Petitioner's claims due to her
professional relationship with her colleague. (Id.)
After considering the applicable law and facts of this case,
the Court does not agree.
are presumed to be honest and to serve with integrity.
See Withrow v. Larkin, 421 U.S. 35, 47 (1975);
Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.
2008). In the absence of a reasonable factual basis for
recusal, a judge should participate in cases assigned to her.
United States v. Holland, 519 F.3d 909, 912 (2008).
Federal judges are, however, required by 28 U.S.C. §
455(a) to recuse themselves from any proceeding in which
their impartiality might reasonably be questioned, even where
no conflict of interest exists. Milgard Tempering, Inc.
v. Selas Corp. of Am., 902 F.2d 703, 714 (9th Cir.
standard for judging the appearance of partiality is
objective: “whether a reasonable person with knowledge
of all the facts would conclude that the judge's
impartiality might reasonably be questioned.”
United States v. Nelson, 718 F.2d 315, 321 (9th Cir.
1983). Stated differently, the question is whether a
reasonable person would perceive a significant risk that the
judge will resolve the case on a basis other than the merits.
In re Mason, 916 F.2d 384, 385 (7th Cir. 1990). The
reasonable person in this context means a well-informed,
thoughtful observer, not a “‘hypersensitive or
unduly suspicious person.'” Clemens v. U.S.
Dist. Court for Cent. Dist. of California, 428 F.3d
1175, 1178 (9th Cir. 2005) (citing Mason, 916 F.2d
at 386). And because there is always “some
risk” of partiality, the risk must be
“substantially out of the ordinary.”
Mason, 916 F.2d at 386 (emphasis in
of a recusal motion is “necessarily fact-driven”
and “must be guided . . . by an independent examination
of the unique facts and circumstances of the particular claim
at issue.” Holland, 519 F.3d at 913. Some
matters are not ordinarily sufficient to require a §
455(a) recusal, including “[r]umor, speculation,
beliefs, conclusions, innuendo, suspicion, opinion, and
similar non-factual matters.” Clemens, 428
F.3d at 1178 (quoting Nichols v. Alley, 71 F.3d 347,
351 (10th Cir. 1995)).
a judge has a duty to hear an assigned case when there is no
legitimate reason to recuse. Holland, 519 F.3d at
912; Clemens, 428 F.3d at 1179. Indeed, “[i]t
is vital to the integrity of the system of justice that a
judge not recuse himself on unsupported, irrational or highly
tenuous speculation.” McCann v. Communication
Design Corp., 775 F.Supp. 1506, 1523 (D. Conn. 1991)
(citing Hinman v. Rogers, 831 F.2d 937, 939 (10th
Cir. 1987)). Section 455(a) “must not be so broadly
construed that it becomes, in effect, presumptive, so that
recusal is mandated upon the merest unsubstantiated
suggestion of personal bias or prejudice.”
Holland, 519 F.3d at 913 (citing United States
v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
Court begins with the “critically important”
identification of the specific factual circumstances that
might “cause an objective observer to question [the
Court's] impartiality.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 865 (1988).
Here, there is only one: the undersigned serves on the United
States District Court for the District of Arizona as a
colleague to Judge Rayes, who, as a state-court judge,
presided over Petitioner's trial and post-conviction
proceedings. No. other fact is presented, and the Court
concludes that this fact alone does not warrant
disqualification. A reasonable observer with knowledge of all
the facts would not, without more, question the partiality of
the Court in presiding over this federal habeas case.
argues that disqualification is common when a fellow judge is
a party to a legal proceeding. (Doc. 33 at 5) Judge Rayes,
however, is not a party to this habeas proceeding and the
cases cited by Petitioner do not support recusal under the
factual circumstances of this case, as explained below.
United States v. Singer (Singer II), 575 F.Supp. 63,
68 (D. Minn. 1983), the judge at issue was the Chief Judge of
the District of Minnesota, whose extensive comments and
judicial coaching of the prosecutor in front of the jury
throughout a criminal trial resulted in reversal on appeal
and remand for a new trial. See United States v.
Singer, 710 F.2d 431, 436 (Singer I) (8th Cir.
1983). On remand, the Chief Judge recused himself and a
district court judge from the same bench was assigned.
Singer II, 575 F.Supp. at 68. The newly assigned
judge recused herself because the Chief Judge was the subject
of testimony in motions that had been filed and the Chief
Judge might be called as a witness. The court determined that
a reasonable person might question whether judges in the
district “might be affected in ruling, either
consciously or subconsciously, by friendship or a spirit of
collegiality or because of the relationship between judges on
the same bench, ” and recused the entire district court
case, Judge Rayes is not a party or former counsel to a
party, nor is he a potential witness. The Court will have no
occasion to judge his credibility or the propriety of any
public comments he may have made outside the course of his
regular judicial duties. The Court will be required to rule
on claims that Judge Rayes committed constitutional error in
state court proceedings, but it is not uncommon for district
judges to pass on the correctness of another judge's
judicial actions. District judges routinely review decisions
by magistrate judges who are colleagues housed in the same
courthouse and working on the same caseload. Parties often
cite as authority decisions by a district judge's
colleagues on the same court, requiring the district judge to
state publicly whether he or she agrees with the
colleagues' decisions. And it is common for district
judges to rule on alleged errors by state court judges who
may well be colleagues in various bench and bar activities.
Given these regular occurrences, the Court ...