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United States v. White

United States District Court, N.D. Ohio

January 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH A. WHITE, Defendant.

          OPINION & ORDER [RESOLVING DOCS. 201, 202]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE

         Defendant Kenneth A. White seeks relief under Federal Rule of Civil Procedure 60(b)(6) from final judgment of his 28 U.S.C. § 2255 petition.[1] White also moves for the Court to recuse itself from considering his Rule 60(b)(6) motion.[2] For the following reasons the Court DENIES the motion for recusal and DENIES the Rule 60(b)(6) motion.

         I. BACKGROUND

         In Fall 2010, while the government was investigating White's tax fraud, the United States indicted White for unrelated federal crimes.[3] In that 2010 case, White initially accepted a global plea agreement that also encompassed his tax fraud offenses. But White then withdrew his guilty plea.

         After withdrawing from the 2010 case plea deal, White went to trial before United States District Judge Solomon Oliver on two other non-tax federal cases. A jury convicted White of conspiracy to commit bank and wire fraud; bank fraud; wire fraud; false statements on a loan application; and failure to appear on February 10, 2012.[4]

         In this completely separate case, on May 28, 2014, a federal grand jury charged White with conspiracy to defraud the government, in violation of 18 U.S.C. § 286, and making false, fictitious, or fraudulent claims to the IRS, in violation of 18 U.S.C. § 287(a).[5]

         On July 16, 2014, the Court granted White's motion to continue the trial, and White waived his speedy trial rights.[6] Repeating what he had done in the two earlier federal criminal cases, after first pleading guilty, [7] White moved to withdraw his guilty plea.[8] The Court granted the withdrawal motion, [9] and White went to trial. On October 31, 2014, a jury convicted White of conspiracy and making false claims.[10] The Court sentenced White to 155 months in prison to run consecutively to Judge Oliver's 2012 sentence.[11]

         When sentencing White, the Court considered the fact that this case involved an intended loss of $1, 995, 687 and an actual loss of $342, 365.60.[12] The Court also considered that White had a criminal history that included felonious assault, a large number of theft convictions, and at least three federal bank fraud convictions involving large amounts of money.[13]

         White appealed to the Sixth Circuit.[14] In his Sixth Circuit direct appeal, White argued that “his due-process rights were violated when the government delayed prosecution from 2010 to 2014, that the district court failed to make any findings to support its decisions to impose consecutive sentences, and that the district court improperly applied the two-level sophisticated-means enhancement.”[15] The Sixth Circuit affirmed White's conviction and sentence.[16]

         White next filed a § 2255 petition.[17] In the habeas petition, White argued that (1) his right to a speedy trial was violated; (2) the delay of his tax fraud indictment violated his due process and equal protection rights; and (3) his counsel was ineffective for failing to properly litigate his pre-indictment delay or speedy trial claims.[18] On April 13, 2017, the Court denied habeas relief and denied a certificate of appealability.[19]

         White then applied for a Sixth Circuit certificate of appealability.[20] On October 4, 2017, the Sixth Circuit denied the application.[21] The Sixth Circuit held that “reasonable jurists would not debate the district court's rejection of” White's three claims in his § 2255 petition.[22] The Sixth Circuit further held that “the district court's opinion carefully and correctly set[] out the facts and law governing the issues raised and clearly set[] forth the reasons underlying the decision.”[23]

         White now files the instant motion for Rule 60(b)(6) relief and the motion for recusal.[24] In his Rule 60(b)(6) motion, White argues the merits of the three claims he made in his § 2255 petition.[25] White also moves for the Court to recuse itself from considering his Rule 60(b)(6) motion due to the Court's role in sentencing White and the Court's role in ruling on White's habeas petition arguments.[26] White also states that the Court is biased against him for being African American.[27] The government filed an opposition to both motions.[28]

         II. DISCUSSION

         A. Motion to Recuse

         The Court denies White's motion to recuse itself from considering his Rule 60(b)(6) motion.

         Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A judge can be disqualified on the basis of prejudice or bias only if this prejudice or bias is personal or extrajudicial.[29] A bias or prejudice is personal or extrajudicial if it “emanates from some source other than participation in the proceedings.”[30]

         White's arguments for recusal fail. The Court's participation in deciding White's sentencing and habeas petition is not a personal or extrajudicial bias. White further fails to explain how the Court may be biased against him for being African American.

         B. Rule 60(b)(6) Motion

         The Court denies White's motion for relief from the Court's final judgment on his § 2255 petition.

         Federal Rule of Civil Procedure 60(b) permits courts to relieve a party from ...


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