The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING DEFENDANT'S MOTION FOR RECUSAL OF UNITED STATES DISTRICT JUDGE JOHN MICHAEL SEABRIGHT
Before the court is Defendant Willie James Coward's Motion for Reconsideration of Order Denying Defendant's Motion for Recusal of United States District Judge John Michael Seabright. In an abundance of caution, Judge Seabright has referred the reconsideration motion to another judge. The present judge now denies the reconsideration motion.
Coward pled guilty to having made a false statement in an application for a United States passport, in violation of 18 U.S.C. § 1542. Indictment, ECF No. 1; Minutes of Proceedings on December 16, 2009, ECF No. 12. Judge Seabright sentenced him to an eight-month prison term. Judgment, ECF No. 26. Coward appealed, then filed a motion to stay his sentence, which Judge Seabright granted. Notice of Appeal, ECF No. 32; Motion to Stay Sentence Pending Appeal, ECF No. 43; Order Granting Defendant's Motion to Stay Sentence Pending Appeal, ECF No. 48. In an unpublished order filed on February 17, 2011, the Ninth Circuit affirmed the judgment. Memorandum, ECF No. 52. Defendant then entered the Federal Detention Center in Honolulu to begin serving his prison sentence on May 5, 2011. Return on Execution of Judgment, ECF No. 79. As a follow up to the oral granting of Coward's counsel's motion to withdraw as counsel, Judge Seabright provisionally appointed new counsel for Coward to determine whether Coward might have unexhausted appellate rights, as Coward himself contended. Minute Order of May 6, 2011, ECF No.76; Transcript of Proceedings on May 5, 2011, ECF No. 81.
The next thing that Judge Seabright did in the case was to issue a sealed Order To Release Confidential Pretrial Services Information as to Willie James Coward on November 8, 2011. ECF No. 82. Three months later, by a letter dated February 7, 2012, ECF No. 84, Coward asked Judge Seabright to recuse himself "[s]ince you cannot be fair to me and most importantly, an impartial and just Federal Judge in the District of Hawaii." Judge Seabright denied the recusal motion because (1) Coward had no matters before this court, and (2) Coward appeared to be basing his request on Judge Seabright's rulings, not on alleged prejudice resulting from an extra-judicial source, as required for recusal under 28 U.S.C. § 455 by a 1986 Ninth Circuit decision Judge Seabright quoted. Order Denying Defendant's Motion for Recusal of United States District Judge J. Michael Seabright, ECF No. 85. Coward now seeks reconsideration of that denial.
Because the reconsideration motion, unlike the initial recusal request, included Coward's declaration asserting that Judge Seabright was biased, Judge Seabright liberally construed the reconsideration motion as possibly brought pursuant to 28 U.S.C. § 144, which requires an affidavit or declaration. Because § 144 states that motions brought under and complying with § 144 may not be decided by the judge whose recusal is sought, he referred the reconsideration motion to another district judge. ECT No. 87.
The declaration Coward submits in support of his reconsideration request states that Coward is seeking Judge Seabright's recusal under 28 U.S.C. § 455(a). Section 455(a) provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Section 455 does not require that a recusal request be supported by any affidavit or declaration.
Recusal may alternatively be required under 28 U.S.C. § 144, although § 144 was not cited by Coward. Section 144 states:
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 the 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.
28 U.S.C. § 144. Coward's original recusal request, unlike his reconsideration motion, did not contain any affidavit or declaration and so was not deemed to have been brought under § 455.
Coward's reconsideration motion does not provide grounds for requiring Judge Seabright's recusal, whether construed as falling under § 455(a) or § 144. The court notes that the declaration attached to Coward's reconsideration motion refers to occurrences between January 13, 2009, and November 8, 2011, but Coward offers no explanation for his failure to refer to those instances in his original recusal request. As he raises them for the first time in his reconsideration motion, he ...