United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE.
3, 2019, the Magistrate Judge entered a Report and
Recommendation which recommends this habeas petition be
dismissed without prejudice as premature. See Doc.
3. Objections were received on June 10 and July 13, 2019.
See Docs. 6-7. Also pending before the Court is the
Motion Objecting to the Appointment of Magistrate.
See Doc. 5. The motion was docketed on June 5, 2019
when it was received by the Clerk's office. However, the
date of the motion is May 27, 2019. Regardless, it was not
received by the Court until after the report and
recommendation was docketed.
discussed below, the Court DENIES the motion
objecting to the appointment of Magistrate (Doc. 5),
SUSTAINS in part and DENIES in
part the objections to the report and recommendation
(Docs. 6-7), and REJECTS the Report and
Recommendation (Doc. 3).
Selected Procedural History
Derek Tyler Horton (“Horton” or
“Petitioner”) was originally convicted of three
capital offenses in August 2012. On appeal, the Alabama Court
of Criminal Appeals reversed the conviction and remanded the
case for a new trial based upon several evidentiary rulings
which required remand for a new trial. See Horton v.
State, 217 So.3d 27 (Ala.Crim.App.2016).
February 15, 2018, Horton originally filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241.
See Civ. Act. No. 1:18-cv-75-JB-B (S.D. Ala.)
(“Horton I”). That case was before a different
District Judge, but had the same Magistrate Judge assigned to
this case. On March 21, 2019, the Magistrate Judge entered a
Report and Recommendation which was ultimately adopted over
the Petitioner's objections on April 24, 2019. See
id., Docs. 27, 30-33. Petitioner subsequently filed a
Notice of Appeal, which was dismissed for want of prosecution
on July 8, 2019. See id., Docs. 35, 41. On July 12,
2019, Horton filed his motion to reinstate which the Eleventh
Circuit granted on July 18, 2019.
1, 2019, the Petitioner filed the instant suit under 28
U.S.C. § 2254. He brings essentially the same claims as
those brought in Horton I - i.e. that double jeopardy applies
to his re-trial for capital murder/robbery, capital
murder/burglary, and capital murder/arson. See Civ.
Act. No. 229-TFM-B (S.D. Ala.) (“Horton II”),
Doc. 1. Petitioner notes he was convicted for those charges
and sentenced to life without the possibility of parole.
Id. at p. 2. He further states that his underlying
state case is currently on appeal before the Alabama Court of
Criminal Appeals. Id. at p. 3. He specifically
asserts only one issue on this petition (double jeopardy) and
even notes that “I am not raising any other issues not
because I am deliberately witholding [sic] for strategical
reasons or abandoning them but because they are
unexhausted.” Id. at p. 8. He argues that
because the Court erred in Horton I, he has to re-raise it
now as a § 2254 claim. Id. at p. 11.
to 28 U.S.C. § 636(b)(1) and S.D. Ala. GenLR
72(a)(2)(R), the Court referred the matter to the assigned
Magistrate Judge, who happened to be the same as assigned to
Horton I. See Doc. 2. On June 3, 2019, the
Magistrate Judge entered her Report and Recommendation
wherein she finds that the habeas petition is premature
because Petitioner has not yet exhausted his direct and
post-conviction remedies available under Alabama law. See
generally Doc. 3. She also recommends denial of a
certificate of appealability.
previously noted in the introduction, Petitioner filed a
motion objecting to the referral, but it was not received
until after a Report and Recommendation had already been
entered. See Docs. 3, 5. Petitioner also filed
several memoranda/objections relating both generally to the
referral to any Magistrate Judge and then more specifically
to the assigned Magistrate Judge - both before and after the
entry of the report and recommendation. See Docs. 4,
6-7. The Court considered all of these documents in reviewing
the case and the report and recommendation.
Petitioner also substantively objects to the Magistrate
Judge's determination that his petition is premature.
See Doc. 6 at p. 2. He states that he exhausted the
double jeopardy claim through his petition for a writ of
mandamus in the Alabama Court of Criminal Appeals and the
Alabama Supreme Court - both of which were denied.
Id. at p. 2-6.
Discussion and Analysis
with respect to recusal of the Magistrate Judge, the
statutory standard has not been met and the Magistrate
Judge's impartiality could not reasonably be questioned.
See 28 U.S.C. § 455. “Under § 455,
the standard is whether an objective, fully informed lay
observer would entertain significant doubt about the
judge's impartiality.” Christo v. Padgett,
223 F.3d 1324, 1333 (11th Cir. 2000). “To disqualify a
judge under § 455, the bias ‘must stem from
extrajudicial sources, unless the judge's acts
demonstrate such pervasive bias and prejudice that it
unfairly prejudices one of the parties.'”
Johnson v. Am. Sec. Ins. Co., 392 Fed.Appx. 838, 840
(11th Cir. 2010) (quoting United States v. Bailey,
175 F.3d 966, 968 (11th Cir. 1999)). “'[A]dverse
rulings alone do not provide a party with a basis for holding
that court's impartiality in doubt.'” Byrne
v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001),
abrogated on other grounds by Douglas Asphalt
Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir. 2011)
(citation omitted). “A motion to recuse, however,
‘is not intended to give litigants a veto power over
sitting judges, or a vehicle for obtaining a judge of their
choice.'” White v. Nat'l Football
League, 585 F.3d 1129, 1138 (8th Cir. 2009) (quoting
United States. v. Cooley, 1 F.3d 985, 993 (10th Cir.
to the extent that Horton objects to this particular
magistrate judge, his objections are ...