Simms v. Warden, Grafton Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

TIMOTHY SIMMS,

Petitioner, : Case No. 2:22-cv-474

- vs - District Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

WARDEN, Grafton Correctional

Institution,

:

Respondent.

DECISION AND ORDER

This habeas corpus case is before the Court on Petitioner’s Motion to Remit Case to

Original Magistrate Judge (ECF No. 28).

This case was transferred from The Honorable Peter B. Silvain, Jr., to the undersigned to

“help balance the Magistrate Judge workload in the District.” (ECF No. 20, PageID 1503).

Petitioner refers to this as the “ostensible” reason, but does not suggest any other reason. As of

February 1, 2022, all habeas corpus cases in the District, regardless of where they are filed, are

randomly (i.e. by computer) assigned to one of the seven active Magistrate Judges. Each of those

judges has a full docket of usual Magistrate Judge duties: preliminary matters in felony cases,

mediation, Social Security disability cases, full case management of prisoner civil rights cases,

case management through judgment of federal misdemeanors, etc. The undersigned retired as an

active Magistrate Judge in March 2011, but continues to serve the Court on a volunteer basis,

primarily in habeas corpus cases. This specialization permits a deep familiarity with habeas corpus

law and its prompt application to transferred cases. Since every habeas corpus case by its very

nature asserts entitlement to immediate release from custody, prompt decision of these cases is an

important priority for the Court.

Petitioner asserts transfer of this case back to Judge Silvain is required “for the specific

reason of avoiding the appearance of bias in the resolution and disposition of this case.” (ECF No.

28, PageID 1539). Litigants have no right to choose among the judges of a court, but are

constitutionally entitled to a judge who is not biased. Tumey v. Ohio, 273 U.S. 510 (1927). The

Court will therefore treat the instant Motion as one for disqualification of the undersigned for bias.

A request for disqualification or recusal under 28 U.S.C. § 455(a) must be directed in the

first instance to the judge who is sought to be disqualified. Goward v. United States, 2014 U.S.

App. LEXIS 11694, *6 (6th Cir. 2014), citing United States v. Balistrieri, 779 F.2d 1191, 1202-03

(7th Cir. 1985); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); In re Drexel Burnham

Lambert, Inc., 861 F.2d 1307, 1312 (2nd Cir. 1988) reh’g denied, 869 F.2d 116 (2nd Cir. 1989);

United States v. Brunsman, 2013 U.S. Dist. LEXIS 92971, *1 (S.D. Ohio 2013); MacNeil v.

Americold Corp., 735 F. Supp. 32, 36 (D. Mass. 1990)(specifically applying rule to United States

magistrate judges). Accordingly, the instant Motion will be ruled on in the first instance by the

undersigned. Petitioner of course has a right to appeal to District Judge Sargus using the procedure

specified in Fed.R.Civ.P. 72(a).

The procedure for disqualifying a federal judge is well established. Under 28 U.S.C. § 144

the party seeking disqualification must make an affidavit of personal bias or prejudice,

accompanied by his counsel's certificate that the affidavit is made in good faith. When a party is

proceeding pro se, no counsel's certificate is required. While the affidavit is directed in the first

instance to the judicial officer sought to be disqualified, if it is timely and legally sufficient, recusal

is mandatory; the truth of the facts set forth in the affidavit are not drawn in question, but only

their legal sufficiency. 13A C. Wright, A. Miller, and E. Cooper, FEDERAL PRACTICE AND

PROCEDURE: JURISDICTION AND RELATED MATTERS 2D, §§ 3541, et seq., particularly § 3550. To

be legally sufficient under § 144, assertions in an affidavit must be definite as to time, place,

persons, and circumstances. Berger v. United States, 255 U.S. 22 (1921). Such detail is necessary

to prevent abuse of § 144. Grimes v. United States, 396 F.2d 331 (9th Cir. 1968). One

distinguished court has held that the appropriate level of detail is the same as required in a bill of

particulars. United States v. Mitchell, 377 F. Supp. 1312 (D.D.C. 1974)(Sirica, J.), aff'd. sub. nom.

United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976).

Since Petitioner has filed no affidavit of bias, analysis must occur under 28 U.S.C. § 455 to

which a different procedure is applicable: no motion or affidavit is required, since the statute

places a burden on a judge to disqualify himself or herself sua sponte. There is no timeliness

requirement. Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir. 1980). The Court, moreover, need not

accept as true the factual statements in the affidavit if one is filed. Phillips v. Joint Legislative

Committee on Performance and Expenditure Review of Mississippi, 637 F.2d 1014, 1019, n.6 (5th

Cir. 1981).

The standard applied in evaluating recusal motions is an objective one. "[W]hat matters is

not the reality of bias or prejudice, but its appearance." Liteky v. United States, 510 U.S. 540, 548

(1994). A federal judicial officer must recuse himself or herself where "a reasonable person with

knowledge of all the facts would conclude that the judge's impartiality might reasonably be

questioned. This standard is not based 'on the subjective view of a party,'" no matter how strongly

that subjective view is held. United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990), cert. denied

499 U.S. 981 (1991); Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); Wheeler v.

Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989); Browning v. Foltz, 837 F.2d 276, 279 (6th

Cir. 1988).

A disqualifying prejudice or bias must ordinarily be personal or extrajudicial. United

States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246,

1250 (6th Cir. 1989). That is, it "must stem from an extrajudicial source and result in an opinion

on the merits on some basis other than what the judge learned from his participation in the case."

United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Youn v. Track, Inc., 324 F.3d

409, 423 (6th Cir. 2003), citing Grinnell, supra; Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir.

1980), citing Grinnell, supra; Woodruff v. Tomlin, 593 F.2d 33, 44 (6th Cir. 1979) (citation

omitted). The Supreme Court has written:

The fact that an opinion held by a judge derives from a source

outside judicial proceedings is not a necessary condition for ’bias

and prejudice’ recusal, since predispositions developed during the

course of a trial will sometimes (albeit rarely) suffice. Nor is it a

sufficient condition for ‘bias and prejudice’ recusal, since some

opinions acquired outside the context of judicial proceedings (for

example, the judge’s view of the law acquired in scholarly reading)

will not suffice. ... [J]udicial rulings alone almost never constitute

valid basis for a bias or partiality motion. See United States v.

Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778

(1966). ... Second, opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings, or of prior proceedings, 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.”

Liteky v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388 (6th

Cir. 2002)(quoting the deep-seated favoritism or antagonism standard). The Liteky Court went on

to hold:

Not establishing bias or partiality, however, are expressions of

impatience, dissatisfaction, annoyance, and even anger, that are

within the bounds of what imperfect men and women, even after

having been confirmed as federal judges, sometimes display. A

judge’s ordinary efforts at courtroom administration — even a stern

and short-tempered judge’s ordinary efforts at courtroom

administration — remain immune.

510 U.S. at 555. Since the decision in Liteky, supra, “federal courts have been uniform in holding

that § 455(a) cannot be satisfied without proof of extrajudicial bias, except in the most egregious

cases.” Flamm, Judicial Disqualification 2d § 25.99, citing In re Antar, 71 F.3d 97 (3rd Cir. 1995),

overruled on other grounds Smith v. Berg, 247 F.3d 532, 534 (3rd Cir. 2001).

Petitioner points to no facts which would give rise to an appearance of bias in this case. I

have never met Mr. Simms nor heard anything about him aside from what I have read in the

documents filed in this case. The writings I have filed in the case contain no ad hominem attacks

on Petitioner or comments on his personal character. To the extent the recommendations for

dismissal depend on credibility findings, they are the findings of the Ohio courts to which I have

recommended this Court defer for the same reason that reviewing courts often defer to credibility

findings of judges who had in-person contact with the witness whose credibility is at issue.

Petitioner asserts the undersigned gives “appearance of a predisposition, with all due

respect, of expecting to deny relief and then attempting to create arguments that justify such denial,

rather than conducting a full, fair and independent review of the issues presented in this case.” To the

extent Petitioner believes the undersigned has “created” arguments rather than dealt even handedly

with the law, he is, of course, free to substantiate that claim in any objections he files to the pending

Report and Recommendations.

The Motion to Remit, construed as a motion to disqualify, is DENIED.

August 11, 2023.

s/ Michael R. Merz

United States Magistrate Judge