Harris v. Shinn

• Court: District Court, D. Arizona
• Decided: September 18, 2020
• Docket: 2:19-cv-05147
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason Lee Harris, No. CV-19-05147-PHX-JJT

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 At issue is the Report and Recommendation (Doc. 38) (“R&R”) submitted in this 16 matter by United States Magistrate Judge Michelle H. Burns recommending the Court deny 17 the Petition for Habeas Corpus as moot because Petitioner was released from custody and 18 he did not challenge his underlying conviction (Doc. 1). Petitioner filed objections to the 19 R&R (Doc. 39). Since the filing of the R&R, Petitioner has filed 13 largely unintelligible 20 motions or supplements to his objections, including a Motion for Recusal of the 21 undersigned. The Court will deny Petitioner’s Motion to Recuse, adopt the Report and 22 Recommendation in full, deny Petitioner’s remaining motions, and dismiss this action. 23 I. Recusal is Not Required 24 Title 28, Section 455(a) of the United States Code provides that a United States 25 judge “shall disqualify” himself in any proceeding in which his “impartiality might 26 reasonably be questioned.” 28 U.S.C. § 455(a). Section 455(b)(1) provides that a judge 27 must also disqualify himself where he “has a personal bias or prejudice concerning a party, 28 or personal knowledge of disputed evidentiary facts concerning the proceeding[.]” Id. 1 § 455(b)(1). Recusal pursuant to § 455(b) is required only if the bias or prejudice stems 2 from an extra-judicial source, not from conduct or rulings during the course of the 3 proceedings. See Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff’d, 4 496 U.S. 543 (1990). “[J]udicial rulings alone almost never constitute [a] valid basis for a 5 bias or partiality motion.” Liteky v. United States, 114 S. Ct. 1147, 1157 (1994). Adverse 6 rulings should be appealed; they do not form the basis for a recusal motion. Further, where 7 the judge forms opinions in the courtroom, either in the current proceeding or in a prior 8 proceeding, these opinions “do not constitute a basis for a bias or partiality motion unless 9 they display a deep-seated favoritism or antagonism that would make fair judgment 10 impossible.” Id. 11 Similarly, 28 U.S.C. § 144 provides for recusal where a party files a “timely and 12 sufficient affidavit that the judge before whom the matter is pending has a personal bias or 13 prejudice either against him or in favor of any adverse party.” The affidavit must state the 14 facts and reasons for the belief that the bias or prejudice exists. Id. If the judge finds the 15 affidavit timely and legally sufficient, the judge must proceed no further, and another judge 16 must be assigned to hear the motion. Id.; United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 17 1980). 18 But Petitioner’s affidavit is not sufficient, there are no facts to support that the 19 undersigned has any bias or prejudice, nor has Petitioner identified any extrajudicial matter 20 from which an asserted bias arose. Accordingly, recusal pursuant to § 455(b) is not 21 appropriate. See, e.g., United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (judge’s 22 prior adverse rulings are insufficient cause for recusal). Nor is recusal pursuant to § 144 23 appropriate. Accordingly, the undersigned will deny the motion to recuse. 24 II. Report and Recommendation 25 The Court adopts in whole the R&R and agrees with the conclusion that this petition 26 is moot. It is a jurisdictional requirement that a habeas corpus petitioner be “‘in custody’ 27 under the conviction or sentence under attack at the time his petition is filed.” Maleng v. 28 Cook, 490 U.S. 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a); Carafas v. 1 LaVallee, 391 U.S. 234, 238 (1968)). “[The Supreme Court has] never held 2 . . . that a habeas petitioner may be ‘in custody’ under a conviction when the sentence 3 imposed for that conviction has fully expired at the time his petition is filed.” Maleng, 490 4 U.S. at 491 (emphasis in original). Once a petitioner has completed the sentence imposed 5 for a conviction, “the collateral consequences of that conviction are not themselves 6 sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” 7 Id. at 492. Thus, while, “custody” is not limited to actual physical incarceration, see Jones 8 v. Cunningham, 371 U.S. 236, 239 (1963), one condition of being “in custody” is that the 9 petitioner be subject to restraints not shared by the public generally, see id. at 243 (parolee 10 is “in custody” within the meaning of the habeas statute). 11 Further, the “case-or-controversy” requirement of article III, § 2, of the United 12 States Constitution requires a habeas corpus petitioner to have a “personal stake in the 13 outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont’l 14 Bank Corp., 494 U.S. 472, 477-78 (1990)). So even where a petitioner satisfies the “in 15 custody” requirement at the time the petition is filed, it may become moot if he is released 16 from custody prior to any ruling. Id. Once a sentence has expired, “some concrete and 17 continuing injury other than the now-ended incarceration (or parole)— some ‘collateral 18 consequence’ of the conviction—must exist if the suit is to be maintained.” Spencer, 523 19 U.S. at 7 (holding that potential impact of conviction on future sentencing proceeding was 20 not a sufficient injury to demonstrate article III standing). 21 Nothing in any of Petitioner’s objections, supplemental objections, or motions for 22 an evidentiary hearing establish that there is an ongoing case or controversy with respect 23 to his habeas corpus petition. He received the relief he sought—release from custody—and 24 did not challenge the propriety of his underlying conviction or allege he is subject to any 25 ongoing collateral consequence.1 Although not clear, to the extent that Petitioner is 26 attempting to present a claim of false imprisonment under state law, Respondent notes that 27 Petitioner has an ongoing tort action in Maricopa County Superior Court (Doc. 33). Thus, 28 1 Petitioner has returned to custody in connection with a separate criminal matter. || the Court will adopt the R&R, deny the Petition as moot, and deny Petitioner’s remaining || motions. 3 IT IS THEREFORE ORDERED that Petitioner’s Motion to Recuse (Doc. 48) is 4|| denied. 5 IT IS FURTHER ORDERED adopting in whole Magistrate Judge Burns’ R&R || (Doc. 38) and dismissing and denying as moot the Petition for Writ of Habeas Corpus 7\|| pursuant to 28 U.S.C. 2254 (Doc. 1). All remaining motions (Docs. 41, 45, 47, 50, 51, 53, || 54,55, 56) are denied. 9 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to || proceed in forma pauperis. Dismissal of the Petition is justified by a lack of jurisdiction and reasonable jurists would not find the ruling here debatable. 12 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment || accordingly and close this matter. 14 Dated this 18th day of September, 2020. CN

16 wef Unifga StatesDistrict Judge 17 18 19 20 21 22 23 24 25 26 27 28

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