Horton v. Stewart

          MEMORANDUM OPINION AND ORDER

          TERRY F. MOORER UNITED STATES DISTRICT JUDGE.

         On June 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.

         As 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).

         I. Selected Procedural History

         Petitioner 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).

         On 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.

         On May 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.

         Pursuant 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.

         II. Objections

         As 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.

         Finally, 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.

         III. Discussion and Analysis

         Ultimately, 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. 1993)).

         Therefore, to the extent that Horton objects to this particular magistrate judge, his objections are ...