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Dixit v. Warden, Irwin County Detention Center

United States District Court, M.D. Georgia, Valdosta Division

March 27, 2019

AKASH DIXIT, Petitioner,
v.
Warden, IRWIN COUNTY DETENTION CENTER, et. al., Respondents.

          ORDER AND REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Petitioner's original and amended applications for habeas corpus relief (ECF Nos. 1, 10, 16, 20), his motion for recusal of the undersigned (ECF No. 42), and his various other motions (ECF Nos. 8, 9, 11, 12, 13, 14, 15, 24, 25, 33, 35). For the reasons explained below, Petitioner's motion for recusal is denied and it is recommended that his applications for habeas relief be denied, and his remaining motions be denied as moot.

         BACKGROUND

         Petitioner is a native and citizen of India. Resp'ts' Resp. to Pets. 1, ECF No. 19. He entered the United States on September 9, 2016, with temporary “B-1 status” which, after an extension, was to expire on September 8, 2017. Id. In January 2016, U.S. Citizenship and Immigration Services (“USCIS”) revoked an H-1B visa application filed by an employer on Petitioner's behalf, because the employer had filed a withdraw request citing Petitioner's choice to not work for them. Id. at 1-2. USCIS also denied an I-140 “immigrant petition for alien worker” filed by Petitioner, along with Petitioner's appeal of that initial denial. Id. at 2.

         Petitioner was transferred to U.S. Immigration and Customs Enforcement's (“ICE's”) custody on August 26, 2018, following his arrest for false imprisonment. Resp'ts' Resp. to Pets. 2. Administrative removal proceedings were initiated against Petitioner that day. Id. On August 28, 2018, Petitioner was notified that he would remain in ICE custody “pending final administrative determination of [his] case.” Id. The record indicates that Petitioner's administrative proceedings are ongoing. See Resp'ts' Resp. to Mot. to Strike 2, ECF No. 37 (notifying the Court that Petitioner's next hearing had been “rescheduled for January 31, 2019”). Petitioner initiated this habeas action on September 13, 2018 (ECF No. 1).

         DISCUSSION

         I. Motion for Recusal[1]

         On February 14, 2019, Petitioner moved for the undersigned to be disqualified or recused from the case alleging, among other things, that the undersigned is “extremely corrupt, vicious[, ] and inhuman[.]” Mot. for Recusal 1, ECF No. 42. He states that he is aware such motions “are filed under two primary statutory provisions” but, due to inadequate legal resources, he cannot “recollect, what [] the exact title and USC numbers for those provisions” are. Id. at n.1. Because Petitioner has not shown recusal is required, his motion is denied.

         A. Standard Governing Recusal

         28 U.S.C. § 455 provides the standard for when a judge, justice, or magistrate judge must disqualify himself from a particular proceeding. The statute generally provides that a magistrate judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The statute also enumerates certain other circumstances requiring a judge to disqualify himself. Id. at § 455(b)(1)-(5).

         The standard under subsection (a) is objective and requires the Court to ask “whether an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain significant doubt about the judge's impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal quotation marks omitted). In the Eleventh Circuit, “it is well settled that the allegation of bias must show that the bias is personal as distinguished from judicial in nature.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per curiam) (internal quotation marks and citation omitted). As a result, “a judge's rulings in the same or a related case are not a sufficient basis for recusal, ” except in rare circumstances where the previous proceedings demonstrate pervasive bias and prejudice. Id.; see also Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute [a] valid basis for a bias or partiality recusal motion.”); McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990) (“[The bias] must derive from something other than that which the judge learned by participating in the case.”).

         28 U.S.C. § 455(b)(1) requires disqualification where the judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]” “Recusal under this subsection is mandatory, because ‘the potential for conflicts of interest are readily apparent.'” Patti, 337 F.3d at 1321 (quoting Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir. 2001)). Any knowledge gained through the course of a judicial proceeding is not a “disputed evidentiary fact” that requires recusal. United States v. Bailey, 175 F.3d 966, 969 (11th Cir. 1999). Instead, knowledge of disputed evidentiary facts must be gained through an extrajudicial source to warrant recusal.

         28 U.S.C. § 144 also governs recusal, but it requires the moving party to file an affidavit stating that the judge has a personal bias or prejudice against the plaintiff or defendant, and the affidavit must provide facts and reasons for the belief that bias or prejudice exists. The statute's affidavit requirement is strictly enforced. See, e.g., United States v. Perkins, 787 F.3d 1329, 1343 (11th Cir. 2015) (finding that the court did not abuse its discretion by denying litigant's pro se motion for recusal under 28 U.S.C. § 144 because the affidavit did not meet the statute's procedural requirements). The party seeking recusal under § 144 “must allege facts that would convince a reasonable person that bias actually exists.” Stringer v. Doe, 503 Fed.Appx. 888, 890 (11th Cir. 2013) (quoting Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000)).

         B. ...


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