Filed: Patrick Fisher

F I L E D
United States Court of Appeals

Tenth Circuit
PUBLISH
JAN 10 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT
Clerk
DUANE R. SWITZER,
Petitioner - Appellant,
v.
No. 99-1241
RICK BERRY; ATTORNEY

GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 98-Z-2636)
Submitted on the briefs: *
Duane Switzer, pro se.
Before TACHA, BRORBY, and MURPHY, Circuit Judges.
TACHA, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal.
See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
*
Petitioner Duane Switzer, pro se, appeals from the district courts order
denying his petition for a writ of habeas corpus under 28 U.S.C. 2254.
Mr. Switzer requests a certificate of appealability (COA), which we deny.
I.
Mr. Switzer was indicted in Colorado under a reverse sting for
purchasing cable boxes, which he believed were stolen, from an undercover agent.
He pled guilty to theft by receiving and attempted theft by receiving in violation
of C.R.S. 18-4-410, 18-2-101. He was sentenced to concurrent 6- and 4-year
prison terms and was fined $9900. In addition, Mr. Switzer defaulted in a
subsequent civil forfeiture action under Colorados public nuisance statute, and
judgment was entered against him in the amount of $29,487.77. His criminal
conviction and sentence were affirmed on direct appeal. The state trial court
denied his post-conviction Rule 35 motion. That denial was affirmed by the
Colorado Court of Appeals. The Colorado Supreme Court then denied
Mr. Switzers petition for writ of certiorari.
II.
In his amended federal habeas petition, Mr. Switzer claimed various due
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process and double jeopardy violations. 1 The district court first noted that
Mr. Switzer had raised only one of his habeas claims outrageous governmental
conduct in his petition for certiorari to the Colorado Supreme Court. Therefore,
the district court found that Mr. Switzers other claims were not fully exhausted.
Nevertheless, the district court denied Mr. Switzers petition on the merits.
Mr. Switzer first argued to the district court that he was denied due process
because of outrageous governmental conduct. He contended that the state statute
prohibiting theft by receiving allows the police to create crimes where none
otherwise exist by misrepresenting that the property is stolen. Second,
Mr. Switzer claimed that he was denied due process because the trial court failed
to inquire into the factual basis for his guilty plea. Finally, Mr. Switzer argued
that he was subjected to double jeopardy because he received a fine as a result of
his criminal conviction and Colorado pursued a civil forfeiture action against his
In his memorandum in support of his application for a COA, Mr. Switzer

argues that he also raised an ineffective assistance of counsel claim which the
district court did not address. However, ineffective assistance of counsel is not
listed in either his initial habeas corpus petition or his amended petition before
the district court. An ineffective assistance of counsel claim appears only as an
unexplained and unsupported allegation in two state court pleadings attached to
the memorandum in support of his petition.
These oblique references to
ineffective assistance of counsel did not raise the issue before the district court,
and therefore did not preserve the issue for appeal.
Okland Oil Co. v. Conoco,
Inc. , 144 F.3d 1308, 1314 n.4 (10th Cir. 1998) (discussing a theory only in a
vague and ambiguous way below is not adequate to preserve issue for appeal)
(citing Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 721-22 (10th Cir. 1993)).
1
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assets based upon the same set of facts.

Citing United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992), the
district court held that Mr. Switzers outrageous governmental conduct claim was
without merit. The district court reasoned that Mr. Switzers crime was the result
of his own mistake of fact believing the boxes were stolen when they were not.
This mistake of fact, even though based on governmental deception, did not rise
to the requisite level of outrageous governmental conduct.
Next, the district court found that despite Mr. Switzers contention to the
contrary, the state trial court judge explicitly inquired into the factual basis for
Mr. Switzers guilty plea. Thus, the district court held that the state court
properly established the factual basis of Mr. Switzers plea and did not deny
Mr. Switzer due process.
Finally, the district court denied Mr. Switzers double jeopardy claim. The
district court held that under United States v. Ursery, 518 U.S. 267, 287-88
(1996), civil forfeiture does not constitute punishment for the purpose of the
Double Jeopardy Clause even when the forfeiture is based upon the same set of
facts as a parallel criminal proceeding.
The district court declined to issue a COA, and Mr. Switzer submitted an
application in this court. Mr. Switzer bases his application on the premise that
no Article III judge actually read his Application for Writ of Habeas Corpus.
-4-
Petitioner was denied Due Process by the federal court itself. Appellants
Petition for Certificate of Appealability filed May 24, 1999, at 2 (emphasis in
original). In his memorandum in support of the COA and in a second application
for COA, he also addresses his ineffective assistance of counsel, due process and
double jeopardy claims.
III.
Before we review the merits of this appeal, we address, sua sponte, whether
this panel must recuse itself from this case. We conclude that under the rule of
necessity we are not compelled to do so.
Several months before he filed this habeas action, Mr. Switzer filed suit
under 28 U.S.C. 1983 against various city, county, state, and private individuals
and entities associated with the reverse sting operation for which he was
convicted. Switzer v. Jones, No. 98-CV-543 (D. Colo. filed Mar. 5, 1998). The
district court granted summary judgment in favor of all but two of the defendants.
As to the two remaining defendants, the district court granted summary judgment
in their favor on all but one of Mr. Switzers claims and ordered Mr. Switzer to
file an amended complaint. Mr. Switzer immediately appealed to this court. We
dismissed the appeal for lack of jurisdiction and remanded. Switzer v. Jones,
No. 99-1180, Order (10th Cir. June 30, 1999). The district court dismissed
Mr. Switzers complaint without prejudice in light of his continuing failure to file
-5-
an amended complaint. Mr. Switzer then appealed the district courts final order.
Switzer v. Jones, No. 99-1508 (10th Cir. filed Nov. 3, 1999). That appeal is
currently in pre-briefing status in this court.
After we dismissed his 1983 appeal and remanded that matter to the
district court, Mr. Switzer filed a civil action pursuant to the Racketeer Influenced
and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968. Switzer v.
Coan, No. 99-1705 (D. Colo. filed Aug. 27, 1999). He named as defendants all
the active and senior judges of this court, two district court judges of the federal
District Court for the District of Colorado, a district court magistrate judge, the
U.S. Attorney for Colorado, the Clerk of the Tenth Circuit, and the Tenth
Circuits Chief Staff Counsel. In the complaint, Mr. Switzer alleges that the
defendants to the RICO action conspired to obstruct justice. He theorizes that
because he is a pro se litigant, Article III judges did not read the filings in his
1983 and 2254 actions. In addition, he claims that the RICO defendants did
not read the orders and judgments issued in his pro se case because such
documents are routinely authored by law clerks and staff attorneys and are signed
by judges without review.
Under 28 U.S.C. 455(a), federal judges must disqualify themselves in any
proceeding in which their impartiality might reasonably be questioned. The test
is whether a reasonable person, knowing all the relevant facts, would harbor
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doubts about the judges impartiality. Hinman v. Rogers, 831 F.2d 937, 939
(10th Cir. 1987) (citation omitted); United States v. Cooley, 1 F.3d 985, 992-93
(10th Cir. 1992) (same). Thus, under ordinary circumstances, the judges on this
panel might have recused in light of their status as defendants in Mr. Switzers
RICO lawsuit.
However, the statutory guidance for recusal must also be read in light of
the judges duty to sit on cases filed with the court. See Nichols v. Alley, 71
F.3d 347, 351 (10th Cir. 1995) (a judge has as strong a duty to sit when there is
no legitimate reason to recuse as he does to recuse when the law and facts
require); United State v. Greenspan, 26 F.3d 1001, 1005 (10th Cir. 1994) (same);
In re American Ready Mix (Lopez v. Behles), 14 F.3d 1497, 1501 (10th Cir.
(1994) (same); Hinman at 939 (same). This court has long held that section
455(a) must not be so broadly construed that it becomes, in effect, presumptive,
so that recusal is mandated upon the merest unsubstantiated suggestion of
personal bias or prejudice. Cooley at 993 (quoting Franks v. Nimmo, 796 F.2d
1230, 1235 (10th Cir. 1986) (further citations omitted); accord Nichols at 351.
Moreover, [t]he statute is not intended to give litigants a veto power over sitting
judges, or a vehicle for obtaining a judge of their choice. Cooley at 993.
Amplifying the judges duty to sit on cases brought to the court, under the
rule of necessity, a judge is qualified to decide a case even if he or she would
-7-
normally be impeded from doing so, when the case cannot be heard otherwise.
United States v. Will, 449 U.S. 200, 213 (1980) (citation and internal quotation
marks omitted); see Pilla v. American Bar Assn, 542 F.2d 56, 59 (8th Cir. 1976)
(stating that under rule of necessity, where all are disqualified, none are
disqualified) (citation omitted); Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir.
1936) (From the very necessity of the case has grown the rule that
disqualification will not be permitted to destroy the only tribunal with power in
the premises.).
In a similar case to the one before us today, the Second Circuit recently
held that where all the active and senior judges in the circuit were sued
indiscriminately in a RICO action, under the rule of necessity neither the court
nor the panel was disqualified from hearing and resolving [the] appeal. TapiaOrtiz v. Winter, 185 F.3d 8, 10 (2d Cir. 1999). Even though it was possible to
convene a disinterested panel in another circuit, the Second Circuit was not
required to transfer the case where appellant [had] indiscriminately named all
then-current Second Circuit judges as defendants, even those who had no role in
deciding either of [appellants other] appeals. Id.; see Liteky v. United States,
510 U.S. 540, 554-56 (1994) (finding that litigants should not be able to obtain a
recusal simply by bringing a meritless action against a judge); United States v.
Studley, 783 F.2d 934, 939-40 (9th Cir. 1986) (same); In re City of Houston, 745
-8-
F.2d 925, 930-31 n.9 (5th Cir. 1984) (an otherwise disqualified judge can invoke
the rule of necessity to hear a case when all judges in his district are disqualified,
even if there are qualified judges in other districts); Andersen v. Roszkowski, 681
F. Supp. 1284, 1289 (N.D. Ill. 1988) (The Court will not allow plaintiffs to
impede the administration of justice by suing every district court judge in [this
district] until their case is transferred out of the Seventh Circuit.), affd, 894
F.2d 1338 (7th Cir. 1990). We agree.
We hold that under our duty to sit and the rule of necessity, a lawsuit
brought indiscriminately against all the active and senior judges on the Tenth
Circuit Court of Appeals does not operate automatically to render the court unable
to hear and decide an appeal brought by the plaintiff/petitioner. Our holding
applies both to appeals in which the judges are named and to associated or
subsequent appeals in which the plaintiff/petitioner is a party but the judges are
not named. Thus, neither this court nor this panel is disqualified from hearing
and resolving this appeal.
IV.
After careful review, we conclude that Mr. Switzer has failed to make a
substantial showing of the denial of a constitutional right. See 28 U.S.C.
2243(c)(2). The district courts dismissal of Mr. Switzers habeas corpus
-9-
petition for lack of merit does not deserve further proceedings, is not subject to a
different resolution on appeal, and is not reasonably debatable among jurists of
reason. See Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Accordingly, we
DENY Mr. Switzers request for a certificate of appealability. The appeal is
DISMISSED.
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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

RICK BERRY; ATTORNEY

In his memorandum in support of his application for a COA, Mr. Switzer

assets based upon the same set of facts.

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