United States District Court, D. Montana, Helena Division
Johnston, United States Magistrate Judge
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
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).
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
Motion for Joint Action
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.
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.
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
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.
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.
Motion for Recusal
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.
28 U.S.C. § 455
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 ...