Richard Fine v. Sheriff of Los Angeles County , 356 F. App'x 998 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD I. FINE, No. 09-56073
Petitioner - Appellant, D.C. No. 2:09-cv-01914-JFW-CW
v.
MEMORANDUM *
SHERIFF OF LOS ANGELES COUNTY;
et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted December 10, 2009**
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Richard Fine appeals from the district court’s denial of his petition for
habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
The district court correctly concluded that Los Angeles Superior Court
Judge Yaffe’s refusal to recuse himself from Fine’s contempt proceedings was not
“contrary to, or involved an unreasonable application of, clearly established federal
law” or an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d); see
also Jones v. Ryan, 583 F.3d 626, 636 (9th Cir. 2009) (de novo review). A judge’s
failure to recuse himself results in a constitutional violation where “the probability
of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252,
2257 (2009) (citation and quotation omitted). Fine asserts that Judge Yaffe was
intolerably biased because he received employment benefits from Los Angeles
County, a party to the underlying litigation. However, unlike the circumstances of
Caperton, Judge Yaffe’s receipt of these benefits did not give him a “direct
personal, substantial, pecuniary interest” in the matter. Id. at 2259 (citing Tumey v.
Ohio, 273 U.S. 510 (1927)). Nor was Judge Yaffe so “personally embroiled” that
he could not preside impartially. Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir.
2007). Fine’s argument that he “exposed” Judge Yaffe for receiving “criminal
payments” is belied by a California statute expressly providing that judges “shall
continue to receive supplemental benefits from the county or court then paying the
benefits.” See Cal. Gov. Code § 68220; see also Sturgeon v. County of L.A., 84
2
Cal. Rptr. 3d 242 (2008) (rejecting taxpayer’s contention that judicial
compensation was an unconstitutional waste or gift of public funds, but finding
that judicial compensation required statutory prescription).
AFFIRMED.
3