The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
CHRISTOPHER JASON THOMPSON,
Petitioner, : Case No. 2:24-cv-4224
- vs - District Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz
WARDEN, North Central Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATION
This habeas corpus case, brought pro se by Petitioner Christopher Jason Thompson, is
before the Court upon Petitioner’s Request for Recusal in which he seeks the disqualification of
the presiding District Judge, Algenon L. Marbley (ECF No. 7). While a decision on recusal must
be made by Judge Marbley himself, a report on the relevant facts and law is within the scope of
the Magistrate Judge reference in the case.
Applicable Legal Standard
Petitioner does not state a legal basis for recusal, but two statutes potentially apply, 28
U.S.C. § 144 and 28 U.S.C. § 455. Two different standards apply to recusal under those two
statutes. 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 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. Petitioner’s Motion is not supported by any affidavit and thus does not qualify
under 28 U.S.C. § 144.
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 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 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).
Justice Scalia has written for the Court:
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). 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).
Section 455(a) asks whether a reasonable person perceives a
significant risk that the judge will resolve the case on a basis other
than the merits. This is an objective inquiry. A reasonable observer
is unconcerned with trivial risks, which are endemic. If they were
enough to require disqualification we would have a system of
preemptory strikes and judge-shopping, which itself would imperil
the perceived ability of the judicial system to decide cases without
regard to persons. ... There are not enough political eunuchs on the
federal bench to resolve all cases with political implications;
anyway it would be weird to assign all political cases to the naifs
while concentrating antitrust and securities cases in the hands of
political sophisticates. ... Tenure of office, coupled with the resolve
that comes naturally to those with independent standing in the
community have led a 'political' judiciary in the United States to be
more assertive in securing legal rights against the political branches
than is the politically neutral, civil service judiciary in continental
Europe.
In re Mason, 916 F.2d 384, 385-87 (7th Cir. 1990)(Easterbrook, J.)
Petitioner’s sole stated basis for requesting recusal is that Judge Marbley has withdrawn
his request to take senior status and this withdrawal has, according to Fox News, left “GOP
Senators fuming.” This has left Petitioner, he says, feeling he “would not get a fair hearing to
adjudicate Federal Constitutional issues.”
This is a habeas corpus case in which the only substantive issues are based on the United
States Constitution. Federal habeas corpus is available only to correct federal constitutional
violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S.
764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983).
The case was randomly assigned to Judge Marbley upon its filing from among the District Judges
resident at the Columbus location of court. Three were nominated by Republican Presidents and
two by Democratic presidents. Assignments to District Judges are random, utterly without regard
to party affiliation. Petitioner points to no prior case involving constitutional issues which he
believes Judge Marbley has not fairly adjudicated.
If the rule of law is to remain the lodestar of federal adjudication, disqualification of a judge
because legislators of one party disapprove of his one action cannot become a basis for
disqualification. The Magistrate Judge therefore respectfully recommends the Request for Recusal
be denied.
December 27, 2024.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #