                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 16 2009

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


RICHARD I. FINE,                                  No. 09-56073

              Petitioner - Appellant,             D.C. No. 2:09-cv-01914-JFW-CW

  v.
                                                  MEMORANDUM *
SHERIFF OF LOS ANGELES COUNTY;
et al.,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                           Submitted December 10, 2009**
                                Pasadena, California

Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.

       Richard Fine appeals from the district court’s denial of his petition for

habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      The district court correctly concluded that Los Angeles Superior Court

Judge Yaffe’s refusal to recuse himself from Fine’s contempt proceedings was not

“contrary to, or involved an unreasonable application of, clearly established federal

law” or an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d); see

also Jones v. Ryan, 583 F.3d 626, 636 (9th Cir. 2009) (de novo review). A judge’s

failure to recuse himself results in a constitutional violation where “the probability

of actual bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.” Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252,

2257 (2009) (citation and quotation omitted). Fine asserts that Judge Yaffe was

intolerably biased because he received employment benefits from Los Angeles

County, a party to the underlying litigation. However, unlike the circumstances of

Caperton, Judge Yaffe’s receipt of these benefits did not give him a “direct

personal, substantial, pecuniary interest” in the matter. Id. at 2259 (citing Tumey v.

Ohio, 273 U.S. 510 (1927)). Nor was Judge Yaffe so “personally embroiled” that

he could not preside impartially. Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir.

2007). Fine’s argument that he “exposed” Judge Yaffe for receiving “criminal

payments” is belied by a California statute expressly providing that judges “shall

continue to receive supplemental benefits from the county or court then paying the

benefits.” See Cal. Gov. Code § 68220; see also Sturgeon v. County of L.A., 84


                                           2
Cal. Rptr. 3d 242 (2008) (rejecting taxpayer’s contention that judicial

compensation was an unconstitutional waste or gift of public funds, but finding

that judicial compensation required statutory prescription).

      AFFIRMED.




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