Nolan v. Palmer, 3:09-cv-00188-RCJ-WGC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
PartiesRICKY NOLAN, Petitioner, v. JACK PALMER, et al., Respondents.
Docket Number3:09-cv-00188-RCJ-WGC
Decision Date28 September 2012

RICKY NOLAN, Petitioner,
JACK PALMER, et al., Respondents.



Date: September 28, 2012


This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro se. The case proceeds on the amended petition filed on July 15, 2009. (ECF No. 14.) Respondents have filed an answer to the petition (ECF No. 64), and petitioner has filed a reply (ECF No. 83.) The case is before the court for resolution on the merits.

I. Preliminary Matters

Before turning to the merits of the petition, the court addresses several pending motions.

Petitioner moves for the court to recuse from this case because it is discriminating against him on the basis of his race and education level and because it has threatened him. (ECF No. 104.)

Under 28 U.S.C. § 455, a judge has an affirmative duty to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." Liteky v. United States, 510 U.S. 540, 555 (1994) (citation omitted). The substantive standard for recusal under 28 U.S.C. § 455 is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997); United

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States v. Studley, 783 F.2d 934, 939 (9th Cir.1986). The Ninth Circuit reviews the court's denial of a section 455 motion for recusal for abuse of discretion. United States v. Chischilly, 30 F.3d 1144, 1149-1150 (9th Cir.1994).

The alleged bias must stem from an "extrajudicial source." Liteky v. United States, 510 U.S. at 554-56; United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997). The Ninth Circuit has held that rulings by a court during the course of a case cannot be extra-judicial conduct. See Hasbrouck v. Texaco, Inc., 830 F. 2d 1513, 1523-24 (9th Cir. 1987); Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F. 2d 1538, 1548 (9th Cir. 1988). However, in Liteky, the Supreme Court recognized that, "[t]he fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for 'bias or prejudice' recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Liteky, 510 U.S. 540, 554. However, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky, 510 U.S. at 555; Ortiz v. Stewart, 149 F.3d 923, 940 (9th Cir. 1998); United States v. Bauer, 84 F.3d 1549, 1560 (9th Cir.1996). Judicial bias or prejudice formed during current or prior proceedings is sufficient for recusal only when the judge's actions "display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555; Chischilly, 30 F.3d at 1149. Thus, judicial rulings may support a motion for recusal only "in the rarest of circumstances." Liteky, 510 U.S. at 555; Chischilly, 30 F.3d at 1149.

In this case, petitioner moves for recusal based on alleged racial discrimination, education discrimination, and threats. Petitioner argues that racial discrimination has been demonstrated by this court's denial of petitioner's repeated motions for appointment of counsel. As the court has explained to petitioner previously, by relying on this court's previous orders as the basis for his motion for recusal, petitioner does not allege any "extrajudicial source" for the court's alleged bias. Nor does petitioner demonstrate such a deep-seated antagonism on the part of the court as to make fair judgment impossible. As this court has repeatedly explained to petitioner, his filings in this case demonstrate that he is capable of adequately representing himself. The court thus finds petitioner's motion for recusal to be groundless

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and denies the motion.

Petitioner moves for reconsideration of the court's order filed August 26, 2011. (ECF No. 105.) Where a ruling has resulted in final judgment or order, a motion for reconsideration may be construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994). Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of the Federal Rules of Civil Procedure provides that any "motion to alter or amend a judgment shall be filed no later than 28 days after entry of the judgment." Furthermore, a motion under Fed. R. Civ. P. 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)).

Here, petitioner has failed to make an adequate showing under either Rule 60(b) or 59(e) that this court's August 26, 2011 order, should be reversed. Petitioner states that he is presenting "newly discovered evidence." However, the document attached by petitioner to his motion, labeled "Ground

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2Y," is simply a claim previously dismissed by the court. (See ECF No. 53 at 16 (dismissing ground 54)). Thus, the court denies petitioner's motion for reconsideration.

Several of petitioner's motions (ECF Nos. 106, 109, 114, 117, 118) seek to revive previously dismissed grounds or submit evidence in support of those previously dismissed grounds. These motions are wholly frivolous construed either as motions for reconsideration or as motions to amend the petition. Accordingly, the court denies the motions.

Petitioner moves for respondents' counsel to be disqualified from this case because he has made false statements. (ECF No. 119.) Petitioner argues that counsel falsely stated that the affidavit of Michael Snyder was admitted at trial. Counsel made no such statement. Counsel argued that the Snyder affidavit was not newly-discovered evidence because the information in the affidavit was discoverable before petitioner's criminal trial. (ECF No. 115.) Counsel did not argue that the affidavit was admitted at trial. Thus, petitioner fails to provide any basis justifying the disqualification of respondents' counsel. The motion is denied.

Last, petitioner moves for a status check. (ECF No. 123.) The court denies the motion as moot because the instant order addresses all outstanding issues in this case and addresses the merits of the amended petition.

II. Background and Procedural History

The following is a summary of the facts as described by the Nevada Supreme Court in its opinion on direct appeal:

Appellant Ricky Nolan was charged with 24 counts of various crimes arising from interactions with two women on separate occasions. The district court granted Nolan's motion to sever the counts into two trials.
At the first trial, Nolan was tried on multiple counts arising from his alleged sexual assault of victim Lynda Weishaar and his subsequent unauthorized use of her credit card. Trial testimony indicated that in October 2002, Weishaar and Nolan arrived separately at a local pub where they engaged in conversation. Weishaar, who had taken an antidepressant and a painkiller earlier that day, drank alcohol for several hours at that bar. Although they left the pub around the same time, they were not seen leaving together. Thereafter, Weishaar was sexually assaulted in a Las Vegas apartment complex.
After the assault, Weishaar was found on a street near the exit of

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the apartment complex. The woman who found her testified Weishaar could not remember her own name. The treating nurse at the hospital stated that Weishaar's memory was limited and "sketchy," and that Weishaar did not know what had happened to her. The treating physician testified that Weishaar had no recollection of the events that had occurred. Moreover, Weishaar told the investigating detective that the events of the night were like a "fuzzy dream" and everything was a

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