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Lout v. Fletcher

United States District Court, D. Montana, Helena Division

March 13, 2018



          John Johnston, United States Magistrate Judge

         This case comes before the Court on Petitioner Jeffery John Lout's Petition for Writ of Habeas Corpus pursuant 28 U.S.C. §2254 (Doc. 1). Lout is a state prisoner proceeding pro se. On January 25, 2018, this Court ordered that Lout's Motion to Dismiss (Doc. 3) and Motion for Copies (Doc. 4) be denied as moot. (Doc. 6). Lout's Motion to Proceed in Forma Pauperis (Doc. 2) was granted. Id. It was further recommended that Lout's petition be dismissed as an unauthorized second or successive petition. Id.

         Following the entry of this Court's Order and Findings and Recommendations, Lout joined other “en masse” habeas petitioners and filed a Motion for Joint Action (Doc. 9), a Motion for Recusal (Doc. 10), and a Motion to Appoint Counsel (Doc. 11).

         As has previously been ruled in the companion “en masse” cases, all of these motions are denied. As a preliminary matter, this Court lacks jurisdiction because Lout's petition is an unauthorized successive petition. But even if the Court had jurisdiction, the motions lack merit, as set forth below.

         i. Motion for Joint Action

         Lout seeks to proceed in a group along with the ten other petitioners with whom he originally filed. As set forth above, the group was previously advised that each petition would be treated individually and as a separate filing. In the renewed “Joint Action to Stay Joined as One Action as per Fed.R.Civ.P. Rule 20(a), ” see (Doc. 9), Lout again seeks “en masse” filing status. The Motion will be denied.

         As set forth above, the Court notes that three additional other groups of “en masse” petitioners have sought to proceed as a class and raise the same claim Lout's initial group raised. All petitioners will be treated in the same manner, each must proceed individually.

         Rule 12 of the Rules Governing § 2254 Cases provides that the Federal Rules of Civil Procedure may be applied in a habeas action “to the extent they are not inconsistent with any statutory provisions” or the § 2254 Rules. In order to qualify for federal habeas relief, a petitioner must meet certain prerequisites. State judicial remedies must be exhausted with respect to each claim raised. A petitioner generally may not proceed with claims that were defaulted in state court, but he might be able to excuse a default. He must comply with the federal statute of limitations, either by filing on time or by asserting entitlement to equitable tolling, or he must demonstrate that his untimeliness may be excused because he did not commit the crime of which he was convicted. The Court no longer has jurisdiction over some petitioners' claims, because they have already litigated one federal habeas petition to conclusion. Any new petition challenging their convictions is “second or successive” and must be pre-authorized by the Court of Appeals for filing in this Court. See 28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam). All of these issues-exhaustion, default, timeliness, and second-or-successive filings-can only be adjudicated on an individual basis. The procedural concern is highlighted in Lout's case as he has filed a second or successive petition.

         For all these reasons, the Court finds that joinder under Fed.R.Civ.P. 20 is inconsistent with 28 U.S.C. §§ 2244 and 2254. Rule 23 is also inconsistent with 28 U.S.C. §§ 1654, 2244 and 2254.

         Federal Rules of Civil Procedure 20 and 23 will not be applied in this action. See Rule 12, Rules Governing § 2254 Cases; cf. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005). Lout must proceed separately; his Motion for Joint Action (Doc. 9) is DENIED.

         ii. Motion for Recusal

         Lout, along with the other “en masse” petitioners, also seeks recusal of “all Montana Judges and Magistrates in the U.S. District Court in the District of Montana.” (Doc. 10 at 1). The basis for this request appears to be twofold. Apparently, an unidentified individual heard an unidentified Montana State Prison employee state, relative to the present claims, “the Feds ain't going to help you, MSP and our Union own all the Judges in Montana.” Id. Additionally, based upon the petitioners' belief that Montana's state criminal charging procedure is unconstitutional and “due to the fact that all of the Federal Judges came originally from and were ‘schooled' through the state judge ranks, or as prosecutors or attorneys that most assuredly were involved in and party to the unconstitutional ‘information and Belief' procedure instead of following the U.S. Constitution and the use of a Grand Jury Indictment” and because of the purported relationships the federal judiciary has with Montana state attorneys and state judges, Petitioners apparently believe the no member of the federal judiciary can adjudicate this matter fairly. Id. at 2. In support of the motion, Petitioners cite 28 U.S.C. § 455 and 28 U.S.C. § 144.

         a. 28 U.S.C. § 455

         Section 455(a) provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” “The test for creation of apparent bias sufficient to require dismissal under [Section 455] is an objective one: ‘whether a reasonable person with knowledge of all the facts would conclude the judge's impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). The “reasonable person” is not someone who is “hypersensitive or unduly suspicious, ” but rather a “well-informed, thoughtful observer” who “understand[s] all the relevant facts” and “has examined the record and law.” United States v. Holland, 519 F.3d 909, 914 (9thCir. 2008). This standard does not mandate recusal upon the mere “unsubstantiated suspicion of personal bias or prejudice.” Id. (citations omitted). Additionally, Section ...

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