                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         January 26, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    SECURITIES AND EXCHANGE
    COMMISSION,

              Plaintiff-Appellee,
                                                          No. 05-2001
     v.                                          (D.C. No. CIV-98-860 BB/RLP)
                                                            (D. N.M.)
    SOLV-EX CORPORATION;
    HERBERT M. CAMPBELL,

              Defendants,

           and

    JOHN S. RENDALL,

              Defendant-Appellant.


                             ORDER AND JUDGMENT            *




Before O’BRIEN , HOLLOWAY , and BALDOCK , Circuit Judges.



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

unanimously to grant the parties’ request for a decision on the briefs without oral



*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant John S. Rendall, proceeding    pro se , appeals the district court’s

denial of his motion for disqualification and for relief from judgment filed

pursuant to 28 U.S.C. § 144 and Fed. R. Civ. P. 60(b)(1), (2), (4), and (6).

Rendall contends that the district court judge relied on evidence that did not exist

in making his amended findings of facts and conclusions of law in this SEC

enforcement action. He further contends that the judge’s reliance on evidence not

in the record both established his bias and prejudice and tainted all his findings

such that the judge should be disqualified and Rendall should be relieved from the

judgment finding him guilty of securities violations, imposing civil penalties, and

enjoining him from further violations. In particular, Rendall points to five

instances in the judge’s forty-five-page decision in which he referred to a

witness’s video testimony when that witness actually testified in person at trial,

one instance in which he purported to quote from a witness’s testimony but did

not do so accurately, and one instance in which he cited an exhibit that Rendall

contends did not support the factual finding for which it was cited. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

      Section 144 provides for the disqualification of a district court judge when

a party to a proceeding before that judge files a “timely and sufficient affidavit”


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showing that the judge has “a personal bias or prejudice either against him or in

favor of any adverse party.” An affidavit filed under § 144 is “strictly construed

against the affiant and there is a substantial burden on the moving party to

demonstrate that the judge is not impartial.”      United States v. Burger , 964 F.2d

1065, 1070 (10th Cir. 1992). “The bias charged must be of a personal nature and

must be such as would likely result in a decision on some basis other than what

the judge learned from his participation in the case.”     United States v. Irwin , 561

F.2d 198, 200 (10th Cir. 1977). Further, “[t]here is as much obligation for a

judge not to recuse when there is no occasion for him to do so as there is for him

to do so when there is.”   Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987).

       Whether to recuse is a decision “committed to the sound discretion of the

district court,” and we will not reverse a judge’s refusal to recuse absent an abuse

of that discretion.   Burger , 964 F.2d at 1070. Based upon our careful review, we

conclude that the district court judge properly denied Rendall’s motion seeking to

disqualify him under § 144. Even if the district court judge did make the errors

Rendall cites, they do not suggest in any way that bias or prejudice was at work in

the judge’s decision.

       Because the district court judge properly refused to disqualify himself from

the case, it was proper for him to rule on Rendall’s motion for relief from

judgment under Rule 60(b). To the extent that Rendall challenges the district


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court’s denial of his Rule 60(b) motion on the merits, we generally review that

decision for an abuse of discretion.   See Servants of Paraclete v. Does   , 204 F.3d

1005, 1009 (10th Cir. 2000).

       “Relief under Rule 60(b) is extraordinary and may only be granted in

exceptional circumstances.”     Bud Brooks Trucking, Inc. v. Bill Hodges Trucking

Co. , 909 F.2d 1437, 1440 (10th Cir. 1990). Our review demonstrates that none of

the errors cited by Rendall justifies relief from the judgment under Rule 60(b)(1),

(2), (4), or (6). Therefore, the district court properly denied Rendall’s motion.

       The judgment of the district court is AFFIRMED. Appellee’s motion for

summary dismissal of the appeal is DENIED as moot.




                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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