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United States v. Wright

United States District Court, M.D. Florida, Tampa Division

November 21, 2017




         Before the Court is Defendant's pro se Motion to Reconsider Motion to Disqualify the Honorable James D. Whittemore (Dkt. 139).[1] The motion is legally insufficient and therefore provides no valid basis for disqualification.[2] The motion is DENIED.

         Applicable Standards

         A judge should disqualify himself only if areasonable person would question his impartiality. Giles v. Garwood, 853 F.2d 876, 878 (11th Cir. 1988), cert, denied, 499 U.S. 1030 (1989). "The bias must arise from an extrajudicial source, except in the rare case 'where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party."' Id., quoting Davis v. Board of School Commissioners, 517' F..2d 1044, 1052 (5th Cir. 1975), cert, denied, 425 U.S. 944(1976)).

         Under § 455(a), a sufficient basis for disqualification exists when "an objective, disinterested, lay observer folly informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). Actual prejudice need not be shown, as § 445 was intended to "promote public confidence in the impartiality of the courts by eliminating even the appearance of impropriety." United States v. Alabama, 828 F.2d 1532, 1541 (11th Cir.), cert, denied, 487 U.S. 1210 (1988).


         First, to the extent he again complains about the denial of his motion to dismiss, '"adverse rulings alone do not provide a party with a basis for holding that the court's impartiality is in doub'" See Lawal v. RTM, 260Fed.Appx. 149, 152 (11 th Cir. 2006) (quoting Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir.2001)).[3] Second, the comments directed to him during the November 2, 2017 status conference do not support disqualification, whether on the basis of personal bias or prejudice or because the undersigned's impartiality might reasonably be questioned.

         This case was scheduled for trial on the November 2017 calendar. Less than two weeks before the status conference, CJA counsel Tim Fitzgerald had been reappointed at Defendant's request. (Dkts. 117, 122). In June, Fitzgerald had been discharged at Defendant's request, the circumstances for which are explained in the Magistrate Judge's June 8, 2017 Order (Dkt. 85).[4] The status conference was scheduled at Fitzgerald's request because of the voluminous discovery he had not been able to review because of his discharge.

         Although Defendant had been warned by the undersigned and the Magistrate Judge that he would be deemed to have waived the right to counsel if he continued to find fault with appointed counsel, that is exactly what was about to occur when the complained of remarks were made. During the status conference, he tendered yet another motion to discharge Fitzgerald, prompting the -comment that if the motion was Filed, it would be granted and the case called up for trial.[5]

         Considering his history of dissatisfaction with counsel, his recent request to have Fitzgerald reappointed, and his intent to file yet another motion to discharge Fitzgerald on the eve of trial, the undersigned's impartiality cannot reasonably be questioned as a result of the comments advising him that the motion would be granted if filed, and the case called up for trial immediately. And they do not evidence the type of personal bias or prejudice sufficient to warrant disqualification.[6]

         The question is whether comments made "in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party." Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir.1975), cert, denied, 425 U.S. 944, 1976). But a judge is not subject to disqualification for bias and prejudice as a result of comments made based on what the judge "properly and necessarily acquired in the course of the proceedings, and are indeed sometimes () necessary to completion of the judge's task, " unless "so extreme as to display clear inability to render fair judgment." Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 1155, 127 L.Ed.2d 474 (1994). And as has been observed, "Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune." Id. at 555-56 (emphasis in original).

         It follows that the comment that Defendant was attempting to manipulate the system by seeking to once again discharge his CJA attorney, who had just been reappointed at his request, was born out of the proceedings, not any personal bias or prejudice toward Defendant. The several Orders describing Defendant's difficulties with his lawyers and efforts to discharge them best illustrate the circumstances underlying the comment. (Dkts. 21, 42, 78, 85, 95, 103, 111, 123). As the Magistrate Judge explained:

As the June 8 Order details, the Defendant has been unflinchingly uncooperative with his lawyers. He rejected his first court-appointed lawyer; hired a second, presumably through family resources; and, in quick order, filed a bar grievance against the second, then asked the Court to appoint a third lawyer. When the Court allowed the substitution, he next refused to cooperate with the third (Mr. Fitzgerald), moving for a fourth lawyer. When that ...

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