(HC)Derrick L. Johnson v. Barnes

Opinion

3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5

6 DERRICK JOHNSON, Case No. 1:21-cv-00177-AWI-SAB-HC

7 Petitioner, ORDER DENYING REQUEST FOR DISQUALIFICATION, APPLICATION FOR 8 v. WRIT OF HABEAS CORPUS, AND MOTION FOR TEMPORARY OR 9 STEVEN D. BARNES, PRELIMINARY INJUNCTIVE RELIEF

10 Respondent. (ECF No. 14, 15)

11 12 Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas 13 corpus pursuant to 28 U.S.C. § 2254. On May 3, 2021, the Court dismissed Petitioner’s petition 14 for writ of habeas corpus for failure to state cognizable federal habeas claims, judgment was 15 entered, and this case was closed. (ECF Nos. 12, 13). On May 17, 2021, Petitioner filed an 16 application for writ of habeas corpus and a motion for temporary or preliminary injunctive relief. 17 (ECF Nos. 14, 15). 18 I. 19 DISCUSSION 20 A. Disqualification 21 In the application for writ of habeas corpus, Petitioner requests that the undersigned 22 disqualify himself because his impartiality might reasonably be questioned. (ECF No. 14 at 1).1 23 A judge is required to disqualify himself if his impartiality might reasonably be questioned. 28 24 U.S.C. § 455(a). A judge shall also disqualify himself if he has “personal knowledge of disputed 25 evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). The decision regarding 26 disqualification is made by the judge whose impartiality is at issue. Bernard v. Coyne, 31 F.3d 27 842, 843 (9th Cir. 1994). Opinions formed during the course of judicial proceedings “almost 1 never constitute a valid basis for a bias or partiality motion” and can only do so “in the rarest 2 circumstances” where the opinions reveal “such a high degree of favoritism or antagonism as to 3 make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555–56 (1994). “The test 4 is ‘whether a reasonable person with knowledge of all the facts would conclude that the judge's 5 impartiality might reasonably be questioned.” United States v. Wilkerson, 208 F.3d 794, 797 (9th 6 Cir. 2000) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997)). “Frivolous 7 and improperly based suggestions that a judge recuse should be firmly declined.” Maier v. Orr, 8 758 F.2d 1578, 1583 (9th Cir. 1985) (citations omitted). 9 Here, Petitioner does not provide any allegations whatsoever as a basis for 10 disqualifications. The undersigned is not concerned with his ability to remain impartial. There is 11 no evidence of any impropriety in the record, and Petitioner does not point to anything in the 12 record even hinting at such a high degree of favoritism or antagonism that might warrant recusal. 13 See Liteky, 510 U.S. at 555–56. Therefore, the undersigned will not recuse himself. 14 B. Application for Writ of Habeas Corpus 15 In the application for writ of habeas corpus, Petitioner raises the same claims previously 16 raised in his original petition. The Court construes the application as a motion for reconsideration 17 filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. See Bernhardt v. Los 18 Angeles County, 339 F.2d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se 19 pleadings and motions liberally); Castro v. United States, 540 U.S. 375, 381–82 (2003) (courts 20 may recharacterize a pro se motion to “create a better correspondence between the substance of a 21 pro se motion’s claim and its underlying legal basis”); Am. Ironworks & Erectors, Inc. v. N. Am. 22 Constr. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001) (a motion for reconsideration is treated as a 23 motion under Federal Rule of Civil Procedure 59(e) if it is filed timely under that rule and as a 24 motion under Federal Rule of Civil Procedure 60(b) otherwise). 25 The Ninth Circuit has recognized that altering or amending a judgment under Rule 59(e) 26 is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of 27 judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) 1 In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct 2 manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously 3 unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 4 intervening change in controlling law. 5 | Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. Calderon, 6 | 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam)). 7 The arguments and claims set forth in the application were already raised in the original g | petition. Accordingly, the Court finds that the extraordinary relief under Rule 59(e) is not g | warranted. 10 C. Preliminary Injunction 11 In the motion for temporary or preliminary injunctive relief, Petitioner requests that he be 12 | released on his own recognizance or released on bail. (ECF No. 15). As this Court dismissed 13 | Petitioner’s original petition for failure to state cognizable federal habeas claims and has found 14 | that the extraordinary relief under Rule 59(e) is not warranted, Petitioner is not entitled to 15 | release. Accordingly, the Court denies Petitioner’s motion for temporary or preliminary 16 | injunctive relief. 17 Il. 18 ORDER 19 Based on the foregoing, IT IS HEREBY ORDERED that the request for disqualification, 20 | application for writ of habeas corpus, and motion for temporary or preliminary injunctive relief 21 | CECF Nos. 14, 15) are DENIED. 22 IT IS SO ORDERED. 23 fp) *. Dated: _ May 18, 2021 : _-SENIOR DISTRICT JUDGE 25 26 27 28