Waldrep v. Shinn

• Court: District Court, D. Arizona
• Decided: August 1, 2019
• Docket: 2:17-cv-04609
• Status: Unknown

Opinion

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

9 Roger Darryl Waldrep, No. CV-17-04609-PHX-DWL (CDB)

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 On May 23, 2019, Petitioner filed a motion for release pending final review of his 16 habeas petition. (Doc. 41.) On July 8, 2019, the Court issued an order denying this motion. 17 (Doc. 44.) Specifically, the Court (1) noted that it is unclear whether district courts even 18 possess authority to issue release orders in this circumstance, (2) further noted that, even 19 assuming such authority exists, it may be exercised only in “extraordinary cases involving 20 special circumstances or a high probability of success,” and (3) concluded that Petitioner 21 hadn’t satisfied this high standard in part because “the Arizona State Court of Appeals 22 addressed many of the same claims Petitioner raises in his pending habeas petition but 23 found no abuse of discretion.” (Id. at 2-5, citing In re Roe, 257 F.3d 1077 (9th Cir. 2001), 24 and United States v. McCandless, 841 F.3d 819 (9th Cir. 2016).) 25 Now pending before the Court are three motions that were filed by Petitioner 26 following the issuance of the July 8, 2019 order: (1) a “motion for reconsideration . . . by 27 Chief Justice of Court” (Doc. 45); (2) a “motion for change of district judge by Chief 28 Justice” (Doc. 46); and (3) a “motion to vacate judgment with prejudice; usurpation; lack 1 of subject matter jurisdiction” (Doc. 47). As explained below, each motion will be denied. 2 In his first motion, Petitioner expresses disagreement with the denial of his motion 3 for release and purports to “appeal[] the denied Motions . . . dated July 8, 2019 by Judge 4 Lanza” to the chief judge of the District Court. (Doc. 45 at 1.) Among other things, he 5 argues that he will ultimately prevail in this case for the same reasons that another petitioner 6 prevailed in a different Arizona habeas case, May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 7 2017). (Doc. 45 at 2.) He concludes with the following: “I pray for the Chief Justice for 8 U.S. District Court for Arizona to grant my de novo review . . . . (Id. at 6.) 9 These arguments lack merit. A litigant who is unhappy with a district judge’s ruling 10 cannot seek to “appeal” that ruling to another district judge. Shuper v. Cady, 2014 WL 11 6893880, *1 (D. Maine 2014) (“To the extent that Plaintiff Shuper is appealing the Court’s 12 [earlier] Order to the Chief Judge, there is no such right to appeal to the Chief Judge, and 13 it is therefore DENIED.”). 14 In his second motion, Petitioner asks for his case to be reassigned to a different 15 judge “due to bias.” (Doc. 46 at 1.) Specifically, Petitioner states that “I demand to have 16 an unbiased, constitutional judge to protect my rights during habeas process” and “[i]f a 17 judge would just take 30 minutes to examine or review my petition, I would be granted my 18 requested relief and released with prejudice forthwith (May v. Ryan supra).” (Doc. 46 at 19 2.) 20 These arguments are unavailing. “[I]n the absence of a legitimate reason to recuse 21 himself, a judge should participate in cases assigned.” United States v. Holland, 519 F.3d 22 909, 912 (9th Cir. 2008) (quotation omitted). The Supreme Court has specifically noted 23 that “judicial rulings almost never constitute a valid basis for a bias or partiality motion. . 24 . . Almost invariably, they are proper grounds for appeal, not for recusal.” Liteky v. United 25 States, 510 U.S. 540, 555 (1994). Thus, the mere fact this Court has denied some of 26 Petitioner’s motions does not demonstrate that the Court’s impartiality may reasonably be 27 questioned. Cf. Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980) (“In the absence of 28 specific allegations of personal bias, prejudice, or interest, neither prior adverse rulings of 1 || a judge nor his participation in a related or prior proceeding is sufficient” to require recusal).' 3 In his third motion, Petitioner asks the chief judge of the District Court to vacate the 4|| underlying state-court judgment that is the subject of his pending habeas petition. (Doc. 5|| 47.) This motion fails for the same reason as his other motions. 6 Accordingly, IT IS ORDERED that: 7 (1) Thereference to the Magistrate Judge is withdrawn as to Petitioner’s “motion 8 || for reconsideration” (Doc. 45) and the motion is denied; 9 (2) reference to the Magistrate Judge is withdrawn as to Petitioner’s “motion for change of district judge by Chief Justice” (Doc. 46) and the motion is denied; and 1] (3) Petitioner’s “motion to vacate judgment with prejudice; usurpation; lack of 12 || subject matter jurisdiction” (Doc. 47) is denied. 13 Dated this Ist day of August, 2019. 14 At 17 United States District Judge 18 19 20 21 22 23} |) The Court further notes that Petitioner’s “bias” claim seems to be premised on the notion that he is obviously entitled to relief under May v. Ryan and any judge who fails to 24 recognize this must be biased. In advancing this argument, Petitioner appears to be unaware that the district court’s 2017 decision in May v. Ryan was recently vacated in 25 relevant par by the Ninth Circuit. May vy. Ryan, 766 Fed. App x 505, 506-07 (9th Cir. 2019) (“Given the long-standing status of the law in Arizona that the State 1s not required to prove sexual intent to successfully prosecute a defendant for child molestation, . . . we cannot conclude that trial counsel’s failure to object to the constitutionality of the statute 27|| placing the burden of proving lack of intent on the defendant fell ‘below an objective standard of reasonableness.’ The district court erred in holding otherwise. Because we do not reach the constitutionality of the Arizona child molestation statute, we vacate the district court’s judgment in that respect.’’) (citation omitted). -3-