United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBryde United States District Judge
December 6, 2017, James Lee Williams, II
("Williams") submitted for filing his
"Combined Petitions for Common Law Writs of Audita
Querela, Prohibition, Mandamus, Advisory Mandamus, and for
Any Other Extraordinary Relief that may be Appropriate in
Order to Correct a Fundamental Miscarriage of Justice for
which Petitioner is Entitled to as a Matter of Law Since the
Restitution Order Exceeds the Authority of the Statutory
Source (28 U.S.C. § 1651)" and declaration in
support. Also included was a motion for recusal and
declaration in support. CR Doc. 171. The court, having considered
the motions, the record, and applicable authorities, finds
that the motions should be denied.
28, United States Code, § 144 provides:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not
less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown
for failure to file it within such time. A party may file
only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made
in good faith.
motion to recuse must be strictly construed for form,
timeliness, and sufficiency to guard against the danger of
frivolous attacks on the orderly process of justice.
United States v, Womack, 454 F.2d 1337, 1341 (5th
Cir. 1972). The mere filing of a motion to recuse does not
mean that the judge must recuse or even transfer the motion
to another judge for consideration. See Chitimacha Tribe
of La. v. Harry L. Laws Co., 690 F.2d 1157, 1162 (5th
Cir. 1982); Superior Diving Co. v. Watts, Mo.
05-197, 2008 WL 2097152, at *2 (E.D. La. May 16, 2008) .
timely, a motion to recuse must be filed as soon as
practicable after the discovery of the allegedly
disqualifying facts, Danielson v. Winnfield Funeral Horn
of Jefferson, Inc., 634 F.Supp. 1110, 1114 (E.D. La.
1986). Here, Williams primarily relies on events that
occurred prior to and at his sentencing to support the
motion. Williams was sentenced on April 26, 2013. CR Doc. 46.
In addition, he refers to a motion he filed July 26, 2016. CR
Doc. 128. Clearly, the motion is untimely.
substance, Williams relies on conclusory allegations
regarding alleged bias of the undersigned. Williams does not
state facts that, if true, would convince a reasonable person
that bias of a personal nature exists. Henderson v.
Dep't of Pub. Safety & Corrs., 901 F.2d 1288,
1296 (5th Cir. 1990); Chitimacha Tribe, 690 F.2d at
1165. The motion will be denied.
preliminary statement, Williams states that his combined
petition is for "extraordinary relief in the nature of
audita querela, mandamus, advisory mandamus, prohibition, or
whatever, et.al." CR Doc. 171 at 4 of 71
(PagelD 843). The basis of the request for relief is
Williams' contention that his restitution order exceeds
the authority of the statute. Id. at 6 -7 of 71
(PagelD 845-46) . This contention could and should have been
raised on appeal if it was a valid one. The court notes that
Williams was represented on appeal by an attorney he
retained.CR Doc. 50, 51. And, to the extent that
Williams had any claim of ineffective assistance of counsel,
that matter could and should have been raised as part of his
motion under 28 U.S.C. § 2255, which was filed June 30,
2015. CR Doc. 100.
court is satisfied that no post-conviction writ of the kind
Williams seeks can alter the amount of his restitution order.
See, e.g., United States v. Miller, 599
P.3d 484 (5th Cir. 2 010) . For example, the writ of audita
querela may be proper where the defendant seeks relief from
the consequences of a judgment ...