United States District Court, D. Arizona
ORDER
Dominic W. Lanza United Slates District Judge
On May
23, 2019, Petitioner filed a motion for release pending final
review of his habeas petition. (Doc. 41.) On July 8, 2019,
the Court issued an order denying this motion. (Doc. 44.)
Specifically, the Court (1) noted that it is unclear whether
district courts even possess authority to issue release
orders in this circumstance, (2) further noted that, even
assuming such authority exists, it may be exercised only in
“extraordinary cases involving special circumstances or
a high probability of success, ” and (3) concluded that
Petitioner hadn't satisfied this high standard in part
because “the Arizona State Court of Appeals addressed
many of the same claims Petitioner raises in his pending
habeas petition but found no abuse of discretion.”
(Id. at 2-5, citing In re Roe, 257 F.3d
1077 (9th Cir. 2001), and United States v.
McCandless, 841 F.3d 819 (9th Cir. 2016).)
Now
pending before the Court are three motions that were filed by
Petitioner following the issuance of the July 8, 2019 order:
(1) a “motion for reconsideration . . . by Chief
Justice of Court” (Doc. 45); (2) a “motion for
change of district judge by Chief Justice” (Doc. 46);
and (3) a “motion to vacate judgment with prejudice;
usurpation; lack of subject matter jurisdiction” (Doc.
47). As explained below, each motion will be denied.
In his
first motion, Petitioner expresses disagreement with the
denial of his motion for release and purports to
“appeal[] the denied Motions . . . dated July 8, 2019
by Judge Lanza” to the chief judge of the District
Court. (Doc. 45 at 1.) Among other things, he argues that he
will ultimately prevail in this case for the same reasons
that another petitioner prevailed in a different Arizona
habeas case, May v. Ryan, 245 F.Supp.3d 1145 (D.
Ariz. 2017). (Doc. 45 at 2.) He concludes with the following:
“I pray for the Chief Justice for U.S. District Court
for Arizona to grant my de novo review . . . . (Id.
at 6.)
These
arguments lack merit. A litigant who is unhappy with a
district judge's ruling cannot seek to
“appeal” that ruling to another district judge.
Shuper v. Cady, 2014 WL 6893880, *1 (D. Maine 2014)
(“To the extent that Plaintiff Shuper is appealing the
Court's [earlier] Order to the Chief Judge, there is no
such right to appeal to the Chief Judge, and it is therefore
DENIED.”).
In his
second motion, Petitioner asks for his case to be reassigned
to a different judge “due to bias.” (Doc. 46 at
1.) Specifically, Petitioner states that “I demand to
have an unbiased, constitutional judge to protect my rights
during habeas process” and “[i]f a judge would
just take 30 minutes to examine or review my petition, I
would be granted my requested relief and released with
prejudice forthwith (May v. Ryan supra).”
(Doc. 46 at 2.)
These
arguments are unavailing. “[I]n the absence of a
legitimate reason to recuse himself, a judge should
participate in cases assigned.” United States v.
Holland, 519 F.3d 909, 912 (9th Cir. 2008) (quotation
omitted). The Supreme Court has specifically noted that
“judicial rulings almost never constitute a valid basis
for a bias or partiality motion. . . . Almost invariably,
they are proper grounds for appeal, not for recusal.”
Liteky v. United States, 510 U.S. 540, 555 (1994).
Thus, the mere fact this Court has denied some of
Petitioner's motions does not demonstrate that the
Court's impartiality may reasonably be questioned.
Cf. Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir.
1980) (“In the absence of specific allegations of
personal bias, prejudice, or interest, neither prior adverse
rulings of a judge nor his participation in a related or
prior proceeding is sufficient” to require
recusal).[1]
In his
third motion, Petitioner asks the chief judge of the District
Court to vacate the underlying state-court judgment that is
the subject of his pending habeas petition. (Doc. 47.) This
motion fails for the same reason as his other motions.
Accordingly,
IT IS ORDERED that:
(1) The
reference to the Magistrate Judge is withdrawn as to
Petitioner's “motion for reconsideration”
(Doc. 45) and the motion is denied;
(2) The
reference to the Magistrate Judge is withdrawn as to
Petitioner's “motion for change of district judge
by Chief Justice” (Doc. 46) and the motion is
denied; and
(3)
Petitioner's “motion to vacate judgment with
prejudice; usurpation; lack of subject matter
jurisdiction” (Doc. 47) is denied.
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