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Heidelberg v. Chambers

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


August 10, 2007

CLEVE HEIDELBERG, PETITIONER,
v.
JOHN CHAMBERS, RESPONDENT.

The opinion of the court was delivered by: Joe Billy McDADE United States District Judge

ORDER

Before the court are the "Motion for Reconsideration of Intradistrict Transfer" filed by Petitioner, Cleve Heidelberg, on July 13, 2007 [Doc. 6] and the Motion to Transfer Case filed by Petitioner on August 7, 2007 [Doc. 8]. The Motion for Reconsideration is MOOT and the Motion to Transfer is DENIED WITHOUT PREJUDICE.*fn1

Petitioner filed his Motion to Reconsider after Chief Judge Michael P. McCuskey transferred this matter to the Peoria Division and after the case was assigned to Judge Michael M. Mihm. Petitioner argues that Judge Mihm should not be assigned to this matter as he was the prosecuting attorney on Petitioner's underlying criminal case. On July 16, 2007, Judge Mihm recused himself and this matter was reassigned to the undersigned Judge. In the Motion to Transfer, Petitioner again reiterates that Judge Mihm should not be assigned to this case.

In both Motions, Petitioner also states:

Additionally, when the case was transferred Judge McCuskey was unaware that Judge McDade of the Peoria Division has a possible conflict of interest. In that, he functioned as one of Petitioner's appointed attorneys in the case that produced the sentencing judgment now being questioned in the Habeas Corpus Action . . . .

28 U.S.C. § 455 provides, in part, that a judge must recuse himself if he participated as a lawyer in the matter in controversy or if his "impartiality might reasonably be questioned." In the instant action, Petitioner asserts that I was one of his attorneys in the underlying criminal prosecution that led to this habeas petition. I have no recollection of ever representing Petitioner in any capacity. Petitioner has provided no evidence that I represented him. Petitioner's mere statement, in a motion, that I represented him is insufficient to prove that I represented him.*fn2 As such, there is no reason to transfer this matter to another judge.*fn3

For the foregoing reasons, "Motion for Reconsideration of Intradistrict Transfer" filed by Petitioner on July 13, 2007 [Doc. 6] is MOOT and the Motion to Transfer Case filed by Petitioner on August 7, 2007 [Doc. 8] DENIED WITHOUT PREJUDICE.

Entered this 10th day of August, 2007


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