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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

TIMOTHY WOOGERD, 

Petitioner, : Case No. 2:18-cv-104 

- vs - District Judge Michael H. Watson 

Magistrate Judge Michael R. Merz 

LYNEAL WAINRIGHT, Warden, 

 Marion Correctional Institution 

 : 

 Respondent. 

DECISION AND ORDER 

 

 This habeas corpus case is before the Court on a Motion by Petitioner labeled “Motion to 

Expand the Record,” but seeking various items of relief which will be decided seriatim. 

Motion to Strike Answer/Return of Writ 

 Petitioner first seeks an order striking Respondent’s Answer. In his Objections to the 

original Report and Recommendations, Woogerd claimed that the State Court Record did not 

contain a document labeled “Plaintiff’s Motion to Dismiss Petitioner’s Motion for post-Conviction 

Relief.” (Objections, ECF No. 24, PageID 2386.) In the Supplemental Report and 

Recommendations, the Magistrate Judge noted that a document bearing a similar title and 

apparently intended to serve the same function was in the State Court Record (Supp. R&R, ECF 

No. 27, PageID 2396, citing State Court Record, ECF No. 15, PageID 203-11). If that was not the 

correct document, Woogerd was invited to submit the correct one for expansion of the record. 
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Woogerd did not do so, but offered an explanation of his difficulties with documents in prison. 

 The Magistrate Judge has reexamined the State Court Record and finds the document 

apparently in question is in that record as Exhibit 13. However in his Motion to Expand, Woogerd 

asserts the Attorney General “failed to serve the Petitioner the ‘Decision and Entry Sustaining 

Plaintiff’s Motion to Dismiss Petitioner’s Motion for Post-Conviction Relief’ filed June 6th 2006.” 

(Motion, ECF No. 29, PageID 2412). Upon examination, the Magistrate Judge finds that the 

referenced Decision is not part of the State Court Record filed by Respondent. Therefore it is not 

the case that the Decision was filed here, but not served on Petitioner. A search of the web site for 

the Franklin County Clerk of Courts also does not reveal any such decision.1

 Petitioner has not 

shown how this Decision is necessary for the decision of this habeas corpus case. Therefore his 

Motion to Strike the Answer is DENIED. 

Motion to Disqualify the Magistrate Judge 

 At the end of his Motion, Woogerd moves to strike both the Report and Recommendations 

(ECF No. 21) and the Supplemental Report and Recommendations (ECF No. 27) and to 

“disqualify Michael R. Merz from any further proceedings as Magistrate Judge of the abovecaptioned case.” (Motion, ECF No. 29, PageID 2417). 

The standard applied in evaluating recusal motions is an objective one. "[W]hat matters is 

not the reality of bias or prejudice, but its appearance." Liteky v. United States, 510 U.S. 540, 548 

(1994). A federal judicial officer must recuse himself or herself where "a reasonable person with 

knowledge of all the facts would conclude that the judge's impartiality might reasonably be 

questioned. This standard is not based 'on the subjective view of a party,'" no matter how strongly 

 

1 https://fcdchcjs.co.franklin.oh.us, visited December 18, 2018. 
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that subjective view is held. United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990), cert. 

denied 499 U.S. 981 (1991); Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); 

Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989); Browning v. Foltz, 837 F.2d 

276, 279 (6th Cir. 1988). 

A disqualifying prejudice or bias must ordinarily be personal or extrajudicial. United 

States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246, 

1250 (6th Cir. 1989). That is, it "must stem from an extrajudicial source and result in an opinion 

on the merits on some basis other than what the judge learned from his participation in the case." 

United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Youn v. Track, Inc., 324 F.3d 

409, 423 (6th Cir. 2003), citing Grinnell, supra;Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir. 

1980), citing Grinnell, supra; Woodruff v. Tomlin, 593 F.2d 33, 44 (6th Cir. 1979) (citation 

omitted). The Supreme Court has written: 

The fact that an opinion held by a judge derives from a source 

outside judicial proceedings is not a necessary condition for ’bias 

and prejudice’ recusal, since predispositions developed during the 

course of a trial will sometimes (albeit rarely) suffice. Nor is it a 

sufficient condition for ‘bias and prejudice’ recusal, since some 

opinions acquired outside the context of judicial proceedings (for 

example, the judge’s view of the law acquired in scholarly reading) 

will not suffice. ... [J]udicial rulings alone almost never constitute 

valid basis for a bias or partiality motion. See United States v. 

Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 

(1966). ... Second, opinions formed by the judge on the basis of facts 

introduced or events occurring in the course of the current 

proceedings, or of prior proceedings, do not constitute a basis for a 

bias or partiality motion unless they display a deep-seated favoritism 

or antagonism that would make fair judgment impossible.” 

Liteky v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388 (6th

Cir. 2002)(quoting the deep-seated favoritism or antagonism standard). The Liteky Court went on 

to hold: 
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Not establishing bias or partiality, however, are expressions of 

impatience, dissatisfaction, annoyance, and even anger, that are 

within the bounds of what imperfect men and women, even after 

having been confirmed as federal judges, sometimes display. A 

judge’s ordinary efforts at courtroom administration — even a stern 

and short-tempered judge’s ordinary efforts at courtroom 

administration — remain immune. 

 510 U.S. at 555. Since the decision in Liteky, supra, “federal courts have been uniform in holding 

that § 455(a) cannot be satisfied without proof of extrajudicial bias, except in the most egregious 

cases.” Flamm, Judicial Disqualification 2d § 25.99, citing In re Antar, 71 F.3d 97 (3rd Cir. 1995), 

overruled on other grounds Smith v. Berg, 247 F.3d 532, 534 (3rd Cir. 2001). 

 Woogerd cites no extrajudicial source of any bias the Magistrate Judge might have against 

him and I have no such extrajudicial knowledge. The Motion to Disqualify is DENIED. 

December 18, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge