*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 9/19/96

TENTH CIRCUIT

THOMAS ODELL KELLY,

Petitioner - Appellant, No. 96-3115

v. D. Kansas

MICHAEL A. NELSON, Warden;

CARLA J. STOVALL, Attorney General,

Respondent - Appellee.

(D.C. No. 95-CV-3416) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.
1Although Kelly’s notice of appeal references only the denial of his motions for

recusal and an ex parte hearing, we assume that he also appeals the denial of his motion to

vacate, since his request for recusal would be meaningless otherwise. This accords with

our obligation to construe pro se pleadings liberally. Haines v. Kerner, 404 U.S. 519,

520-21 (1972).

-2-

Thomas Odell Kelly’s petition for a writ of habeas corpus, filed pursuant to 28

U.S.C. § 2254, was dismissed without prejudice by the district court so that Kelly could

pursue state court remedies. Kelly immediately moved the district court to vacate the

dismissal, and brought a separate motion for the recusal of the Honorable Dale E. Saffels. 

 After both motions had been denied, Kelly requested an ex parte hearing on his motion

for recusal, asserting that Judge Saffels could not rule on the issue of his own recusal. 

This third motion was denied as moot. Kelly has appealed the denial of these three

motions.1

 The district court denied Kelly’s request to proceed in forma pauperis on

appeal, as well as his request for a certificate of probable cause, which we now treat as a

petition for a certificate of appealability. Lennox v. Evans., 87 F.3d 431, 434 (10th Cir.

1996).

Having carefully reviewed the record before us, we agree with the district court

that Kelly’s present petition raises claims similar to those raised in an earlier petition,

Kelly v. Stotts, Case No. 94-3010. In dismissing Kelly’s appeal from the denial of that

earlier petition, we explicitly noted our agreement with the district court that Kelly had

not properly pursued his claims through the state court. See Kelly v. Stotts, Appeal No.

94-3084.
2Kelly’s new claims allege that public defenders failed to perfect the “first time”

appeal of the state district court’s denial of an ineffective assistance of counsel claim, and

failed to appeal some unspecified order relating to the application of Kansas Sentencing

Guidelines to Kelly’s sentence.

-3-

Kelly presents no evidence to show that he has now actually exhausted his state

court remedies. Although he raises two new ineffective assistance of counsel claims,2 he

has not demonstrated that either claim has been properly pursued in the state court, but

relies instead on conclusory assertions that state court procedures are inadequate or

ineffective. Kelly also relies on a letter he received from a Kansas public defender’s

office advising him that an unspecified motion had been denied by the state district court,

and suggesting that he pursue relief under K.S.A. 60-1507 and seek the assistance of the

Kansas Legal Service for Prisoners. The record before us contains no indication of any

action taken by Kelly in the state courts with respect to the matter referenced in the letter. 

In short, we find that Kelly’s arguments with respect to the denial of his motion to vacate

are frivolous. 

Kelly’s arguments with respect to Judge Saffels’ denial of the motion for recusal

are also frivolous. The motion for recusal appears to be predicated on little more than the

fact that Judge Saffels dismissed the § 2254 petition and did not rule on the motion to

vacate as quickly as Kelly desired. Adverse judicial rulings alone are almost never a valid

basis for a bias motion. Liteky v. United States, 510 U.S. 540, 555 (1994). Kelly has not

presented any substantial argument for departure from this rule. His allegations of racial
-4-

bias are conclusory and unsupported. “Unsupported, irrational or highly tenuous

speculation” is an inappropriate grounds for recusal Hinman v. Rogers , 831 F.2d 937,

939 (10th Cir. 1987).

Finally, we note that there is no requirement that someone other than Judge Saffels

rule on the motion for recusal. As 28 U.S.C. § 455(a) explicitly provides, the judge “shall

disqualify himself in any proceeding in which his impartiality might reasonably be

questioned.” (Emphasis added). The transfer to another judge for decision is at most

permissive. See United States v. Heldt, 668 F.2d 1238, 1271 n.69 (D.C. Cir. 1981), cert.

denied, 456 U.S. 926 (1982).

Finding that Kelly’s appeal is frivolous within the meaning of 28 U.S.C.

§ 1915(e)(2)(I), we DISMISS the appeal. It follows, of course, that the certificate of

appealability is DENIED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge