FILED
NOT FOR PUBLICATION JUL 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRYL SHEARS, No. 12-36019
Petitioner - Appellant, D.C. No. 2:10-cv-00561-JLR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Federal prisoner Darryl Shears appeals pro se from the district court’s denial
of his Federal Rule of Civil Procedure 60(b) motion for relief from the court’s
judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction under 28
U.S.C. § 2253. We review the denial of a Rule 60(b) motion for abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion, see Mackey v. Hoffman, 682 F.3d 1247, 1248 (9th Cir. 2012), and we
affirm.
Shears contends that the district court erred by denying his Rule 60(b)
motion because Judge Robart was required to recuse himself from Shears’s section
2255 proceeding after previously recusing himself from sentencing pursuant to
Santobello v. New York, 404 U.S. 257 (1971). This contention is unpersuasive
because Shears’s section 2255 motion did not involve a breach of the plea
agreement. See United States v. Camper, 66 F.3d 229, 233 (9th Cir. 1995) (where
government breaches plea agreement at sentencing, reassignment to a different
sentencing judge under Santobello “is done simply to insure compliance with the
plea agreement”). Further, there is no evidence that 28 U.S.C. § 455 required
Judge Robart’s recusal. See 28 U.S.C. § 455(a) (requiring disqualification only
when a judge’s impartiality might reasonably be questioned).
AFFIRMED.
2 12-36019