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Bolin v. Chappell

United States District Court, Ninth Circuit

April 29, 2013

PAUL C. BOLIN, Petitioner,
v.
KEVIN CHAPPELL, as Warden of San Quentin State Prison, Respondent.

ORDER DENYING MOTION TO DISQUALIFY PRESIDING JUDGE

LAWRENCE J. O'NEILL, District Judge.

On February 20, 2013, Petitioner Paul C. Bolin ("Bolin") filed a petition for writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2241(c)(3) and leave to proceed in forma pauperis in the United States District Court for the Northern District of California. Two days later, the Northern District Court entered an order transferring the case to this Court. While the transfer order was entered February 22, 2013 on the docket of the Northern District Court, the case was not transferred to this Court until April 4, 2013. On April 1, 2013, this Court accepted for filing Bolin's motion to disqualify the undersigned from adjudicating this case.

I. Case Background

Bolin, a condemned inmate, initially commenced federal habeas proceedings regarding his conviction and sentence on March 11, 1999 by filing an application for stay of execution and appointment of counsel, plus a motion to proceed in forma pauperis. These submissions were filed by the Court under case number 1:99-cv-5279. In due time, counsel were appointed to represent Bolin and investigation of his federal claims culminated with the filing of a timely comprehensive federal petition on August 8, 2000. On the same day, with the assistance of appointed counsel, Bolin filed his first state petition for habeas corpus relief with the California Supreme Court raising the same federal constitutional claims. On November 28, 2000, the Court issued an order directing the Respondent Warden of San Quentin State Prison in the Federal Habeas Action (the "Warden") to show cause why abeyance of federal proceedings should not be ordered. Based on the Warden's response that he did not intend to file a return to the order to show cause, the Court ordered abeyance of federal proceedings on December 15, 2000 for the duration of exhaustion proceedings before the California Supreme Court. On December 29, 2000, Bolin (through counsel) lodged an amended petition for habeas corpus which would be deemed filed when the California Supreme Court denied his exhaustion petition. The amended petition is a 240-page pleading which alleges 32 claims and 60 sub-claims.

On January 19, 2005 the California Supreme Court summarily denied Bolin's state petition on the merits, and additionally found several claims procedurally barred for Bolin's failure to raise them in the first instance on direct appeal. On the same day, the earlier lodged amended petition (from December 29, 2000) was deemed filed. After a change in counsel, the Warden filed an answer and both parties commenced briefing the substantive issues in the petition. The Court specifically directed that the issue of procedural default would not be litigated in advance of the merits of the claims presented in the petition.

On April 27, 2012, the Court entered an order granting a limited evidentiary hearing on one of Bolin's claims, having found that the claim stated a valid claim for habeas relief and that if the facts offered in support of the claim could be substantiated, Bolin would be entitled to relief. After evaluating the Warden's motion for reconsideration, the Court entered an amended order granting an evidentiary hearing on August 21, 2012. The Warden filed a second motion for reconsideration on March 15, 2013, which the Court denied on March 21, 2013. The evidentiary hearing is scheduled to commence on May 14, 2013.

II. Overview of the Pro Se Petition in this Case

The substance of Bolin's pro se petition in this case is comprised largely of an excerpt form another document which mentions condemned inmates Theodore Shove ("Shove") and Spencer Brasure ("Brasure"), plus a handwritten declaration of Bolin. There are 12 discernible claims in the 54-page document applicable to Bolin (nine of which also are applicable to other condemned inmates). The three claims specific to Bolin allege: the trial prosecutor committed prosecutorial misconduct by withholding exculpatory evidence and inducing prosecution witnesses to perjure themselves; ineffective assistance of trial counsel Charles Soria for failure to prepare the case, introduce exculpatory evidence, and examine witnesses; and incompetence of Mr. Soria's investigator, Bruce Binns for his intoxication, failure to investigate, and overcharging for the tasks he did accomplish.

The claims universal to all California condemned inmates allege that the California litigation process for capital cases is illegal. The petition alleges the problems with the California procedures have been "certified" by Ninth Circuit Court of Appeals Judge Arthur Alarc§n as well as by two independent commissions studying the matter. The state system is said to be illegal because of the excessive delays in adjudicating constitutional claims and because of the California Supreme Court's resort to procedural defaults, which in turn limit federal review.

III. Grounds for Disqualification

Bolin's grounds for disqualification are pleaded in the petition and argued in his separate motion. The petition recites that under 28 U.S.C. § 455(a) when a judge presiding over a case is named by a party in that case as a defendant in another case, disqualification is warranted. The petition references D.C. District Court case numbers CV-09-2316-UNA "or" CV-09-0656-RMW.

The motion relies on 28 U.S.C. § 455(b)(1)(2)(3)(4) and (5). In the body of the motion as well as in Bolin's supporting declaration under penalty of perjury, he claims that the undersigned is named as a defendant in his submissions.

Bolin's primary complaint is that the undersigned is not adjudicating his claims about the California illegal capital case litigation process. He alleges the undersigned has denied him access to the Court and committed fraud by not ruling on properly submitted and justiciable documents. The undersigned also is charged with aiding and abetting state government agents in violating his federal constitutional rights. He provides three examples.

1. The ruling of the undersigned on Bolin's 2012 § 1983 action (case number 1:12-cv-00077-LJO-GSA) stating (in Bolin's words) that the Court has "no ...

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