United States District Court, D. Montana, Billings Division
ORDER DENYING MOTIONS FOR RECUSAL
L. Christensen, Chief Judge United States District Court.
Lee Quigg and Dusty Whitehouse, co-defendants at trial, have
each filed a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. They are federal
prisoners proceeding pro se. With their § 2255 motions,
each filed a motion to recuse the Honorable Susan P. Watters,
who presided at trial and at sentencing. Judge Watters
referred the recusal motions to this Court for decision.
See Order (Doc. 236).
Quigg nor Whitehouse say whether they rely on 28 U.S.C.
§ 144 or § 455. The Court will consider both.
"The substantive standard for recusal under 28 U.S.C.
§ 144 and 28 U.S.C. § 455 is the same: Whether a
reasonable person with knowledge of all the facts would
conclude that the judge's impartiality might reasonably
be questioned." United States v. McTieman, 695
F.3d 882, 891 (9th Cir. 2012). Applying the standard requires
"a realistic appraisal of psychological tendencies and
human weakness." Caperton v. A.T. Massey Coal Co.,
Inc., 556 U.S. 868, 883-84 (2009) (quoting Withrow
v. Larkin, 421 U.S. 35, 47 (1975)).
Quigg and Whitehouse assert that Judge Watters failed to
address issues they attempted to raise pro se before
trial. It is normal for judges to defer to counsel's
judgment and to hear counsel rather than the defendant. A
defendant who is represented by counsel and who has not been
permitted to engage in hybrid representation has no legal
right to speak for himself. Judge Watters explained this
twice to Quigg and once to Whitehouse. See Order
(Docs. 81, 89, 97). These facts provide no reason to infer
that Judge Watters was biased or prejudiced.
to address her pro se motions is the only basis
Whitehouse alleges for Judge Watters' recusal.
See Whitehouse Mot. & Aff. (Doc. 228) at 2
¶¶ 3-5. Evidently, she finds in Quigg's further
allegations no reasonable support for an inference of bias or
prejudice. Whitehouse's motion is denied.
alleges two extrajudicial sources of bias or prejudice:
"Judge Watters is a former law partner of Vern
Woodward" and "socialized" with him, and Judge
Watters "is married to a retired Detective from the
Billings Police force." Quigg Aff. (Doc. 223) at 2
¶¶ 3, 8.
does not allege that the retired Detective Watters played any
role in investigating the facts of this case. Nor does he
allege that Judge Walters has any continuing connection with
Woodward's firm. Judges frequently preside in matters
involving long-ago law partners, see, e.g., United States
v. Mendoza, 468 F.3d 1256, 1263 (10th Cir. 2006),
especially in a small jurisdiction like Montana. Further, a
judge who used to be a prosecutor and who worked with
officers and agents will frequently hear and evaluate their
testimony without being presumed biased or prejudiced. That
connection is less tenuous than the one Quigg describes-a
former defense lawyer/state judge's marriage to a retired
detective previously employed by the same municipal force
that previously employed a trial witness. A reasonable person
would not infer a possibility of bias or prejudice from
Quigg's allegations. Cf. 28 U.S.C. §
455(b)(1), (4), (5).
also points to an order in the record of the case that, he
avers, expressed "personal belief in vouching for Vern
Woodward, that, 'Quigg is represented by Vernon Woodward,
a well-respected and competent Billings attorney."'
Id. at 2 ¶ 6 (quoting Order (Doc. 89) at 1).
The order said what every judge necessarily believes: that
counsel appointed by the court is competent and we
11-respected enough to be entrusted with decisions about how
to defend the case. Otherwise, counsel would not be a member
of the panel of attorneys available for appointment in
criminal cases. Rule 4(a) of the § 2255 Rules requires
the judge who presided over trial, who will frequently be the
judge who appointed counsel,  to rule on the § 2255
motion, including any allegations of ineffective assistance
of counsel. Judge Walters' Order (Doc. 89) does not
support a reasonable inference of bias or prejudice in
counsel's favor or against Quigg.
Quigg's other allegations refer to rulings made (or not
made) in the course of the criminal case. See Quigg
Aff (Doc. 223) at 2-3 ¶¶ 6, 9-11. They do not
remotely suggest "deep-seated favoritism or antagonism
that would make fair judgment impossible." Liteky v.
United States, 510 U.S. 540, 555, 556 & n.3
noted, motions under 28 U.S.C. § 2255 are meant to be
decided by "the judge who conducted the trial and
imposed sentence." See Rule 4(a), Rules
Governing § 2255 Proceedings; see also 28
U.S.C. § 2255(a). "[A] judge has as strong a duty
to sit when there is no legitimate reason to recuse as [s]he
does to recuse when the law and facts require."
Clemens v. United States Dist. Court, 428 F.3d 1175,
1179 (9th Cir. 2005) (quoting Nichols v. Alley, 71
F.3d 347, 351 (10th Cir. 1995)). Quigg fails to allege any
basis for a reasonable person to infer that Judge Watters
should not decide his case.
IT IS ORDERED that the motions for recusal (Docs. 223, 228)
Judge Watters was not a
partner in the firm, and her connection with it ended when
she became a state district court judge in 1998. She remained
on the state bench until 2013, when she was named to the
federal bench. See Fed. R. Evid. 201(b). These
facts, however, hardly matter, as Quigg's ...