United States District Court, S.D. Ohio, Western Division
Michael R. Barrett, United States District Judge.
matter is before the Court on Defendant's
fifth motion for appointment of counsel in the
context of collateral proceedings (Doc. 194), his Motion to
Disqualify (Doc. 195), and his Motion for Relief 60(b). (Doc.
Court incorporates by reference its prior case summary
contained in its Opinion and Order dated September 6, 2018.
(Doc. 191) (the “§ 2255 Order”). Among other
things, this Order denied § 2255 relief on the following
(1) this Court improperly denied his motion to suppress; (2)
this Court abused its discretion in refusing to reopen
suppression hearing when presented with new evidence; (3)
this Court erred in denying Petitioner's motion to
dismiss the Superseding Indictment because his acts were
wholly intrastate; (4) ineffective assistance of trial
counsel; and (5) ineffective assistance of appellate counsel.
(Id. at PAGEID #: 1001). Defendant appealed the
§ 2255 Order,  which the Sixth Circuit construed as an
application for a certificate of appealability
(“COA”) and denied. (Doc. 204). About two months
after the § 2255 Order, and prior to the adjudication of
that appeal, Defendant filed the pending motions to appoint
and to disqualify. (Docs. 194, 195). Following the
adjudication of that appeal, Defendant filed the pending Rule
60(b) motion for relief from the § 2255 Order exactly
one year after its entry.
LAW AND ANALYSIS
Motion to disqualify
Court begins with whether this case must be assigned to
another judge. Defendant cites 28 U.S.C. § 144 as the
basis for the undersigned's disqualification, which
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not
less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown
for failure to file it within such time. A party may file
only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made
in good faith.
Id. (emphasis added). Section 144 is strictly
construed, including the requirement of a separate
certificate of counsel of record stating that it is made in
good faith. Scott v. Metropolitan Health Corp., 234
Fed.Appx. 341, 353 (6th Cir. 2007). The fact that Defendant
is pro se does not necessarily negate the requirement.
See Hirschkop v. Virginia State Bar Ass'n, 406
F.Supp. 721, 724-25 (E.D. Va. 1975) (“Though plaintiff
is, himself, counsel of record, nevertheless no
[certification of good faith] was made by plaintiff in either
capacity.”) (citing Flegenheimer v. United
States, 110 F.2d 379 (3rd Cir. 1936); Town of East
Haven v. Eastern Airlines, Inc., 293 F.Supp. 184 (D.
Conn. 1969); Freed v. Inland Empire Ins. Co., 174
F.Supp. 458 (D. Utah 1959)). The Sixth Circuit has not
weighed in on § 144 requirements in the event of a pro
se litigant, though the insistence on strict construction in
Scott suggests the requirement would not be excused.
Reed-Bey v. Pramstaller, No. 06-10934, 2011 WL
37964, *1 (E.D. Mich. Jan. 5, 2011).
without deciding that issue, the information that Defendant
has included in his affidavit is insufficient to warrant
disqualification. He devotes five pages in his memorandum to
legal arguments and exhibits related to the affidavit for the
search warrant in his case-excessively treaded ground at this
juncture, which will be discussed elsewhere in this order.
But legal disagreements are wholly irrelevant here; alleged
facts in connection with a § 144 motion “must
relate to ‘extrajudicial conduct rather than …
judicial conduct.'” Ullmo ex rel. Ullmo v.
Gilmour Acad., 273 F.3d 671, 681 (6th Cir. 2001)
(quoting United States v. Story, 716 F.2d 1088, 1091
(6th Cir. 1983)) (internal quotation marks omitted). Put
differently, the bias must arise from the judge's
“‘background and association and not from the
judge's view of the law.'” Id.
(quoting Story, 716 F.2d at 1090) (internal
quotation marks omitted). There is no part of Defendant's
affidavit that refers to extrajudicial conduct; it deals
exclusively with prior legal and factual determinations made
in the context of the proceedings. See also Youn v.
Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003) (Recusal
unwarranted where “[p]laintiffs base[d] their
allegations exclusively on the magistrate judge's orders
and oral statements during proceedings related to this
he does not invoke it, most of the cases Defendant cites deal
with a different code section-28 U.S.C. § 455-that
requires disqualification “in any proceeding in which
[a judge's] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). See, e.g.,
Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147,
127 L.Ed. 2D 474 (1994); In re Moody, 755 F.3d 891
(11th Cir. 2014); United States v. Adams, 722 F.3d
788 (6th Cir. 2013); In re United States, 441 F.3d
44 (1st Cir. 2006); Parham v. Johnson, 7 F.Supp.2d
595 (W.D. Pa. 1998). In this context, ...