McCray v. Ryan

          ORDER

          Honorable Diane J. Humetewa, United States District Judge.

         Petitioner 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 motion.

         I. Background

         Petitioner 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.

         II. Applicable Law

         Judges 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. 1990).

         The 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 original).^[1]

         Analysis 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)).

         Finally, 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)).

         III. Analysis

         The 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.

         Petitioner 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.

         In 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 bench. Id.

         In this 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 ...