Kellon v. Payne

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION LORENZO LAMAR KELLON PETITIONER ADC # 165224 V. NO. 5:18-CV-00165-JM WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT ORDER The Court has reviewed the Recommended Disposition submitted by United States Magistrate Judge J. Thomas Ray and the filed objections. In his objections, Petitioner alleges that United States Magistrate Judge J. Thomas Ray’s recommended dismissal of his habeas petition is in retaliation for Petitioner’s refusal to consent to proceed before Judge Ray. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (a). The question is “whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.” United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013). “When a party seeks to establish bias or prejudice from court conduct, the party must show that the judge had a disposition so extreme as to display clear inability to render fair judgment.” Id. “An unfavorable judicial ruling, however, does not raise an inference of bias or require the trial judge's recusal.” Harris v. State of Mo., 960 F.2d 738, 740 (8th Cir. 1992). Nothing in the record shows that Judge Ray “had a disposition so extreme as to display clear inability to render fair judgment.” The Court finds this argument to be without merit. Petitioner also argues that the Defendants did not timely respond to his Motion for Default as required under Federal Rule of Civil Procedure 27(a). Rule 27 applies to depositions to perpetuate testimony. It does not apply to motions for default. Petitioner is not entitled to default judgment. After carefully considering these documents and making a de novo review of the record in this case, the Court concludes that the Recommended Disposition should be, and hereby is, approved and adopted in its entirety as this Court’s findings in all respects. IT IS THEREFORE ORDERED THAT : 1. All claims asserted in the 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus, Docs. 1 and 12, are DISMISSED, WITH PREJUDICE; 2. The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3) that an in forma pauperis appeal of this Order and accompanying Judgment would not be taken in good faith; and 3. Petitioner’s pending Motion for Affirmative Relief (Doc. 34), Motion to Appear for Evidentiary Hearing (Doc. 36), Motion to Appoint Counsel (Doc. 37), Motion for Reconsideration (Doc. 38), and Motion for Summary Judgment (Doc. 39) are DENIED as MOOT. DATED this 3rd day of December, 2019. I