Gibson v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

RICHARD J. GIBSON,

Petitioner, : Case No. 3:22-cv-173

- vs - District Judge Michael J. Newman

Magistrate Judge Michael R. Merz

WARDEN, London Correctional

Institution,

:

Respondent.

DECISION AND ORDER DENYING MOTION FOR RECUSAL

This habeas corpus case, brought pro se by Petitioner Richard Gibson, is before the Court on

Petitioner’s Motion to Recuse (ECF No. 44). The Motion asks the Magistrate Judge to recuse

himself and, in any event, motions for recusal are directed in the first instance to the judicial officer

sought to be removed. 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).

Petitioner brings his Motion under both 28 U.S.C. § 144 and § 455. 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).

Petitioner’s Affidavit under § 144 is legally insufficient because it does not purport to show

any personal bias. 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). I have absolutely no

extrajudicial knowledge of Petitioner and he has not cited to any such supposed extrajudicial

knowledge.

Under 28 U.S.C. § 455, 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 filed1. Phillips v.

Joint Legislative Committee on Performance and Expenditure Review of Mississippi, 637 F.2d

1014, 1019, n.6 (5th Cir. 1981).

Most of Petitioner’s Affidavit argues with decisions made in the case by the undersigned.

Making mistakes either of law or fact does not prove bias or prejudice. The remedy for such

mistakes is by objection to the District Judge, which Petitioner has done (ECF Nos. 40 and 43).

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

1 For example, Petitioner claims his victim had an STD, but offers no proof.

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).

Petitioner has not established a case for recusal under either § 144 or § 455. The Motion to

Recuse is DENIED.

September 11, 2023.

s/ Michael R. Merz

United States Magistrate Judge