The opinion of the court was delivered by: Judge Smith
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255. This matter is before the Court on petitioner's February 16, 2007, request for recusal of the District Judge from consideration of petitioner's federal habeas corpus petition, pursuant to 28 U.S.C. §455(a). Doc. No. 123. Respondent opposes petitioner's request. Doc. No. 126.
For the reasons that follow, petitioner's request for recusal of the District Judge, Doc. No. 123, is DENIED.
Petitioner alleges that the District Judge is biased against him and must recuse himself from these §2255 proceedings because the Court improperly disqualified Joseph Reed as defense counsel due to a conflict of interest; because the Court improperly denied petitioner's motion to suppress evidence; because there were no African Americans seated on the jury; and because the Court constructively amended the indictment during jury instructions by redacting the quantities of drugs charged. See Motion for Recusal, Doc. No. 123. In connection with his claim that the Court improperly denied the motion to suppress evidence, petitioner again alleges, as he did in his motion for a new trial, that Special Agent Thomas Gill lied to obtain the search warrant, by stating that he had met with Francisco Caro at the Franklin County Corrections Center. Petitioner also contends that the District Judge demonstrated bias against him by stating, during the suppression hearing, that "the trial is only a few days away," that the Court would not permit a fishing expedition, and by directing defense counsel in the types of questions that counsel could ask. Motion for Recusal, at 11.
28 U.S.C. §455(a), (b) provides:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or ...