Herbert v. Warden, Belmont Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
HAKEEM C. HERBERT,
Petitioner, 	: 	Case No. 2:26-cv-477
- vs - 	District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
WARDEN,
Belmont Correctional Institution,
:
Respondent.
DECISION AND ORDER DENYING MOTION TO DISQUALIFY
This habeas corpus case, BROUGHT PRO SE BY Petitioner Hakeem Herbert, is before
the Court on Petitioner’s Motion to Disqualify the undersigned (ECF No. 29). Petitioner brings
his motion pursuant to 28 U.S.C.§ 455.
Motions to disqualify or for recusal of federal judicial officers are directed in the first
instance to the officer sought to be removed. Goward v. United States, 2014 U.S. App. LEXIS
11694, *6 (6th Cir. 2014), citing United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir.
1985); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); In re Drexel Burnham Lambert,
Inc., 861 F.2d 1307, 1312 (2nd Cir. 1988) reh’g denied, 869 F.2d 116 (2nd Cir. 1989); United States
v. Brunsman, 2013 U.S. Dist. LEXIS 92971, *1 (S.D. Ohio 2013); MacNeil v. Americold Corp.,
735 F. Supp. 32, 36 (D. Mass. 1990)(specifically applying rule to United States Magistrate Judges).
The standard applied in evaluating recusal motions is an objective one. "[W]hat matters is
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not the reality of bias or prejudice, but its appearance." 	Liteky v. United States, 510 U.S. 540, 548
(1994). A federal judicial officer must recuse himself or herself where "a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might reasonably be
questioned. This standard is not based 'on the subjective view of a party,'" no matter how strongly
that subjective view is held. United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990), cert. denied
499 U.S. 981 (1991); Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); Wheeler v.
Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989); Browning v. Foltz, 837 F.2d 276, 279 (6 th
Cir. 1988).
A disqualifying prejudice or bias must ordinarily be personal or extrajudicial. 	United
States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246,
1250 (6th Cir. 1989). That is, it "must stem from an extrajudicial source and result in an opinion
on the merits on some basis other than what the judge learned from his participation in the case."
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Youn v. Track, Inc., 324 F.3d
409, 423 (6th Cir. 2003), citing Grinnell, supra; Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir.
1980), citing Grinnell, supra; Woodruff v. Tomlin, 593 F.2d 33, 44 (6th Cir. 1979) (citation
omitted).
The Supreme Court has written:
The fact that an opinion held by a judge derives from a source
outside judicial proceedings is not a necessary condition for ’bias
and prejudice’ recusal, since predispositions developed during the
course of a trial will sometimes (albeit rarely) suffice. 	Nor is it a
sufficient condition for ‘bias and prejudice’ recusal, since some
opinions acquired outside the context of judicial proceedings (for
example, the judge’s view of the law acquired in scholarly reading)
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will not suffice. ... [J]udicial rulings alone almost never constitute
valid basis for a bias or partiality motion. 	See United States v.
Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778
(1966). ... Second, opinions formed by the judge on the basis of facts
introduced 	or 	events 	occurring 	in 	the 	course 	of 	the 	current
proceedings, or of prior proceedings, do not constitute a basis for a
bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388 (6th
Cir. 2002)(quoting the deep-seated favoritism or antagonism standard). The Liteky Court went on
to hold:
Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. 	A
judge’s ordinary efforts at courtroom administration — even a stern
and 	short-tempered 	judge’s 	ordinary 	efforts 	at 	courtroom
administration — remain immune.
510 U.S. at 555. An affidavit filed under § 144 must “allege[ ] facts which a reasonable person
would believe would indicate a judge has a personal bias against the moving party.” Youn v. Track,
Inc., 324 F.3d 409, 423 (6th Cir. 2003), citing Gen. Aviation, Inc. v. Cessna Aircraft, Co., 915 F.2d
1038, 1043 (6th Cir.1990). Since the decision in Liteky, supra, “federal courts have been uniform
in holding that § 455(a) cannot be satisfied without proof of extrajudicial bias, except in the most
egregious cases.” Flamm, Judicial Disqualification 2d § 25.99, citing In re Antar, 71 F.3d 97 (3rd
Cir. 1995), overruled on other grounds Smith v. Berg, 247 F.3d 532, 534 (3rd Cir. 2001).
The kind of personal bias that warrants recusal “must be predicated ... upon extrajudicial
conduct rather than on judicial conduct.” United States v. Rosales, 2002 WL 16706937 *1 (S.D.
Ohio Nov. 4, 2022)(Rice, J.) citing Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003) (quoting
City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir. 1980)).
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The alleged bias must “stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the judge
learned from his participation in the case.” United States v. Grinnell
Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).
Extrajudicial 	conduct 	encompasses 	only 	“personal 	bias 	as
distinguished 	from 	a 	judicial 	one, arising out 	of 	the judge's
background and association and not from the judge's view of the
law.” Id. at 1090 (internal quotation marks omitted). “Personal” bias
is prejudice that emanates from some source other than participation
in the proceedings or prior contact with related cases. Wheeler v.
Southland Corp., 875 F.2d 1246, 1251-52 (6th Cir.1989) (citing
Demjanjuk v. Petrovsky, 776 F.2d 571, 577 (6th Cir.1985)).
Youn, 324 F.3d at 423. A bias sufficient to justify recusal must be a bias arising “out of the judge’s
appraisal of the complaining party personally,” not “a judicial [bias]” stemming from the “judge’s
view of the law.” Oliver v. Mich. State Bd. of Educ., 508 F.2d 178, 180 (6th Cir. 1974). Even
“prejudice aris[ing] out of the judge’s background and associations” is insufficient. Id.
In his Motion Petitioner cites only positions the undersigned has taken in signed, filed
decisions in this case. 	The Magistrate Judge reference in the case was transferred to the
undersigned one month ago on September 14, 2026 (Transfer Order, ECF No. 16). At the time of
transfer there were several pending motions which impeded making the case ripe for decision; all
of them were decided promptly, which apparently has given Petitioner the impression the
undersigned is rushing the case. The decisions are fully reasoned and the undersigned has
reconsidered them on Petitioner’s motion. The undersigned has never received or considered any
extrajudicial information related to the Petitioner.
Petitioner’s Motion to Disqualify is denied.
October 15, 2026.
s/ Michael R. Merz
United States Magistrate Judge
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