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Johnson v. Salazar, 2:17-cv-1310 JAM KJN P. (2018)

Court: District Court, E.D. California Number: infdco20181002g20
Filed: Sep. 27, 2018
Latest Update: Sep. 27, 2018
Summary: ORDER JOHN A. MENDEZ , District Judge . Petitioner is a federal prisoner, proceeding without counsel. Petitioner's application for a writ of habeas corpus under 28 U.S.C. 2241 was dismissed without prejudice on March 19, 2018. On August 2, 2018, petitioner filed a motion to disqualify the undersigned under 28 U.S.C. 455(a). In his motion, petitioner speculates that the undersigned is biased against petitioner based on how the undersigned will rule on petitioner's pending motion under Ru
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ORDER

Petitioner is a federal prisoner, proceeding without counsel. Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2241 was dismissed without prejudice on March 19, 2018. On August 2, 2018, petitioner filed a motion to disqualify the undersigned under 28 U.S.C. § 455(a). In his motion, petitioner speculates that the undersigned is biased against petitioner based on how the undersigned will rule on petitioner's pending motion under Rule 60(b)(1) of the Federal Rules of Civil Procedure. As set forth below, the court denies the motion.

A judge is required to disqualify himself if his impartiality might reasonably be questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a party, 28 U.S.C. § 455(b)(1). The decision regarding disqualification is made by the judge whose impartiality is at issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994).

The test for disqualification under section 455 is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. United States v. Winston, 613 F.2d 221, 222 (9th Cir. 1980). Evaluations of impartiality, bias or prejudice under section 455 are made using an objective standard. Id.

Evaluated under this objective standard, petitioner's motion fails to demonstrate personal bias or lack of impartiality. Petitioner's argument is solely based on his speculation as to how the undersigned will rule on a pending motion. Petitioner fails to point to any objective evidence showing that the undersigned's impartiality might reasonably be questioned, or that he has a personal bias or prejudice against petitioner.

Accordingly, IT IS HEREBY ORDERED that petitioner's August 2, 2018 motion to disqualify (ECF No. 55) is DENIED.

Source:  Leagle

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