1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID SCOTT HARRISON, Case No. 3:20-cv-0647-BAS-MSB
12 Plaintiff, ORDER: (1) DENYING MOTION 13 v. FOR RECUSAL AND (2) DISMISSING PETITION AS 14 RON BROOMFIELD, Warden, SUCCESSIVE PETITION 15 Defendant. PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER 16 PROVISION 17 18 Petitioner David Scott Harrison has filed a Petition for Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2254, along with a motion to proceed in forma pauperis. (ECF 20 Nos. 1, 2.) Petitioner has also filed a “Motion Recuse All Judges and Magistrate Judges of 21 the United States District Court, Southern District of California.” (ECF No. 3.) For the 22 reasons discussed below, Petitioner’s motion for recusal is denied and this case is 23 summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A). The motion to proceed in 24 forma pauperis is denied as moot. 25 MOTION FOR RECUSAL 26 Petitioner seeks recusal of all the United States District Judges and Magistrate 27 Judges of the Southern District of California from this matter pursuant to 28 U.S.C. § 144 28 and § 455. (See ECF No. 3, at 1.) If a party brings a timely § 144 motion, and the 1 accompanying affidavit is determined to be legally sufficient, another judge must be 2 assigned to hear the matter. See 28 U.S.C. § 144; United States v. Sibla, 624 F.2d 864, 867 3 (9th Cir. 1990). An affidavit brought pursuant to § 144 is found to not be legally sufficient 4 “unless it specifically alleges facts that fairly support the contention that the judge exhibits 5 or prejudice directed toward a party that stems from an extrajudicial source.” Silba, 625 6 F.2d at 868. However, a motion that is also brought pursuant to § 455 does not require the 7 “referral of the question of recusal to another judge” because § 455 includes no such 8 provision. Id. 9 “‘In the absence of a legitimate reason to recuse himself, a judge has a duty to sit in 10 judgment in all cases coming before him, . . . except those in which [his] ‘impartiality might 11 reasonably be questioned.’” United States v. Holland, 501 F.3d 1120, 1123 (9th Cir. 2007) 12 (citations omitted); 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the 13 United States shall disqualify himself in any proceeding in which his impartiality might 14 reasonably be questioned.”)). A motion to disqualify “must be evaluated on an objective 15 basis, so that what matters is not the reality of bias or prejudice but its appearance.” Liteky 16 v. United States, 510 U.S. 540, 549 (1994). 17 Here, Petitioner asserts he has previously “brought litigation and a judicial complaint 18 against [Chief] Judge Burns,” who was the prosecutor on Petitioner’s original criminal case 19 in 1990. (ECF No. 3, at 9.) Petitioner claims that the “judges of this courthouse are all the 20 brethren, colleagues, associates, allies, confederates and friends of Judge Burns.” (Id. at 21 5.) Petitioner maintains that, as a result, the judges of this Court are “bias[ed] in favor of 22 Burns, and prejudice[d] against Petitioner.” (Id.) 23 Under both sections 144 and 455, a judge should recuse him or herself if “a 24 reasonable person with knowledge of all the facts would conclude that the judge’s 25 impartiality might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 26 (9th Cir. 1993). Here, the Court finds that Petitioner’s claims are too vague and contain no 27 specific allegations relating to this Court or any of the other Southern District Judges and 28 Magistrate Judges, other than the claims against United States District Court Chief Judge 1 Larry Burns who is not presiding over this matter. Absent some specific allegation of 2 personal bias, prejudice or interest, there is no showing that the Court’s impartiality may 3 reasonably be questioned. See Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980) (“In 4 the absence of specific allegations of personal bias, prejudice, or interest, neither prior 5 adverse rulings of a judge nor his participation in a related or prior proceeding is sufficient” 6 to require recusal). Petitioner’s conclusory and vague allegations are insufficient to 7 establish bias by this Court or that the impartiality of this Court might reasonably be 8 questioned. Petitioner’s Motion to Recuse all District Judges and Magistrate Judges in the 9 Southern District of California is DENIED. 10 PETITION BARRED BY GATEKEEPER PROVISION 11 The instant Petition is not the first Petition for a Writ of Habeas Corpus that 12 Petitioner has submitted to this Court challenging his March 1990 murder conviction in 13 San Diego County Superior Court Case No. CRN16848. On April 23, 1997, Petitioner 14 filed in a Court a Petition for Writ of Habeas Corpus in case number 97cv0749 J (JFS). In 15 that petition, Petitioner challenged his 1990 murder conviction as well. On June 15, 2001, 16 the Court denied the petition on the merits. See Harrison v. Helman, 97-cv-0749-J-JFS 17 (June 15, 2001 S.D. Cal.) (ECF No. 66). Petitioner appealed the decision to the United 18 States Court of Appeals for the Ninth Circuit. Id. (ECF No. 79.) On January 2, 2003, the 19 Ninth Circuit affirmed the district court’s decision. See Harrison v. Helman, et al., No. 20 01-56475 (9th Cir. Jan. 2, 2003) (ECF No. 92). 21 Petitioner is now seeking to challenge the same conviction he challenged in his prior 22 federal habeas petition. Unless a petitioner shows he has obtained an Order from the 23 appropriate court of appeals authorizing the district court to consider a successive petition, 24 the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A); see also 25 Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding a petition is successive where it 26 challenges “the same custody imposed by the same judgment of a state court” as a prior 27 petition). A successive application is permissible “only if it rests on a new rule of 28 constitutional law, facts that were previously unavailable, or facts that would be sufficient 1 ||to show constitutional error in the petitioner’s conviction.” 28 U.S.C. § 2244(b)(2). “Even 2 |\if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek 3 |}authorization from the court of appeals before filing his new petition with the district 4 ||court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Here, there is no indication 5 || the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID SCOTT HARRISON, Case No. 3:20-cv-0647-BAS-MSB
12 Plaintiff, ORDER: (1) DENYING MOTION 13 v. FOR RECUSAL AND (2) DISMISSING PETITION AS 14 RON BROOMFIELD, Warden, SUCCESSIVE PETITION 15 Defendant. PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER 16 PROVISION 17 18 Petitioner David Scott Harrison has filed a Petition for Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2254, along with a motion to proceed in forma pauperis. (ECF 20 Nos. 1, 2.) Petitioner has also filed a “Motion Recuse All Judges and Magistrate Judges of 21 the United States District Court, Southern District of California.” (ECF No. 3.) For the 22 reasons discussed below, Petitioner’s motion for recusal is denied and this case is 23 summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A). The motion to proceed in 24 forma pauperis is denied as moot. 25 MOTION FOR RECUSAL 26 Petitioner seeks recusal of all the United States District Judges and Magistrate 27 Judges of the Southern District of California from this matter pursuant to 28 U.S.C. § 144 28 and § 455. (See ECF No. 3, at 1.) If a party brings a timely § 144 motion, and the 1 accompanying affidavit is determined to be legally sufficient, another judge must be 2 assigned to hear the matter. See 28 U.S.C. § 144; United States v. Sibla, 624 F.2d 864, 867 3 (9th Cir. 1990). An affidavit brought pursuant to § 144 is found to not be legally sufficient 4 “unless it specifically alleges facts that fairly support the contention that the judge exhibits 5 or prejudice directed toward a party that stems from an extrajudicial source.” Silba, 625 6 F.2d at 868. However, a motion that is also brought pursuant to § 455 does not require the 7 “referral of the question of recusal to another judge” because § 455 includes no such 8 provision. Id. 9 “‘In the absence of a legitimate reason to recuse himself, a judge has a duty to sit in 10 judgment in all cases coming before him, . . . except those in which [his] ‘impartiality might 11 reasonably be questioned.’” United States v. Holland, 501 F.3d 1120, 1123 (9th Cir. 2007) 12 (citations omitted); 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the 13 United States shall disqualify himself in any proceeding in which his impartiality might 14 reasonably be questioned.”)). A motion to disqualify “must be evaluated on an objective 15 basis, so that what matters is not the reality of bias or prejudice but its appearance.” Liteky 16 v. United States, 510 U.S. 540, 549 (1994). 17 Here, Petitioner asserts he has previously “brought litigation and a judicial complaint 18 against [Chief] Judge Burns,” who was the prosecutor on Petitioner’s original criminal case 19 in 1990. (ECF No. 3, at 9.) Petitioner claims that the “judges of this courthouse are all the 20 brethren, colleagues, associates, allies, confederates and friends of Judge Burns.” (Id. at 21 5.) Petitioner maintains that, as a result, the judges of this Court are “bias[ed] in favor of 22 Burns, and prejudice[d] against Petitioner.” (Id.) 23 Under both sections 144 and 455, a judge should recuse him or herself if “a 24 reasonable person with knowledge of all the facts would conclude that the judge’s 25 impartiality might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 26 (9th Cir. 1993). Here, the Court finds that Petitioner’s claims are too vague and contain no 27 specific allegations relating to this Court or any of the other Southern District Judges and 28 Magistrate Judges, other than the claims against United States District Court Chief Judge 1 Larry Burns who is not presiding over this matter. Absent some specific allegation of 2 personal bias, prejudice or interest, there is no showing that the Court’s impartiality may 3 reasonably be questioned. See Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980) (“In 4 the absence of specific allegations of personal bias, prejudice, or interest, neither prior 5 adverse rulings of a judge nor his participation in a related or prior proceeding is sufficient” 6 to require recusal). Petitioner’s conclusory and vague allegations are insufficient to 7 establish bias by this Court or that the impartiality of this Court might reasonably be 8 questioned. Petitioner’s Motion to Recuse all District Judges and Magistrate Judges in the 9 Southern District of California is DENIED. 10 PETITION BARRED BY GATEKEEPER PROVISION 11 The instant Petition is not the first Petition for a Writ of Habeas Corpus that 12 Petitioner has submitted to this Court challenging his March 1990 murder conviction in 13 San Diego County Superior Court Case No. CRN16848. On April 23, 1997, Petitioner 14 filed in a Court a Petition for Writ of Habeas Corpus in case number 97cv0749 J (JFS). In 15 that petition, Petitioner challenged his 1990 murder conviction as well. On June 15, 2001, 16 the Court denied the petition on the merits. See Harrison v. Helman, 97-cv-0749-J-JFS 17 (June 15, 2001 S.D. Cal.) (ECF No. 66). Petitioner appealed the decision to the United 18 States Court of Appeals for the Ninth Circuit. Id. (ECF No. 79.) On January 2, 2003, the 19 Ninth Circuit affirmed the district court’s decision. See Harrison v. Helman, et al., No. 20 01-56475 (9th Cir. Jan. 2, 2003) (ECF No. 92). 21 Petitioner is now seeking to challenge the same conviction he challenged in his prior 22 federal habeas petition. Unless a petitioner shows he has obtained an Order from the 23 appropriate court of appeals authorizing the district court to consider a successive petition, 24 the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A); see also 25 Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding a petition is successive where it 26 challenges “the same custody imposed by the same judgment of a state court” as a prior 27 petition). A successive application is permissible “only if it rests on a new rule of 28 constitutional law, facts that were previously unavailable, or facts that would be sufficient 1 ||to show constitutional error in the petitioner’s conviction.” 28 U.S.C. § 2244(b)(2). “Even 2 |\if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek 3 |}authorization from the court of appeals before filing his new petition with the district 4 ||court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Here, there is no indication 5 || the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition. 6 CONCLUSION 7 Based on the foregoing, Petitioner’s Motion to Recuse All District and Magistrate 8 ||Judges is DENIED. Further, because there is no indication Petitioner has obtained 9 || permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court 10 |/cannot consider his Petition. Accordingly, the Court DISMISSES this action without 11 || prejudice to Petitioner filing a petition in this court if he obtains the necessary order from 12 Ninth Circuit Court of Appeals. Petitioner’s Motion to Proceed in Forma Pauperis is 13 || DENIED as moot. For Petitioner’s convenience, the Clerk of Court shall attach a blank 14 || Ninth Circuit Application for Leave to File Second or Successive Petition. 15 Lastly, Petitioner has failed to make “a substantial showing of the denial of a 16 ||constitutional right,” and reasonable jurists would not find debatable this Court’s 17 assessment of his claims. See 28 U.S.C. § 2253(c). As such, a certificate of appealability 18 DENIED. See Rules Governing § 2254 Cases, Rule 11(a) (requiring the district court 19 ||that issues an order denying a habeas petition to either grant or deny a certificate of 20 || appealability). 21 IT IS SO ORDERED. 22 23 || DATED: April 13, 2020 ( yllag | Apphaarts 24 United States District Judge 25 26 27 28