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United States v. Rose

United States District Court, S.D. Ohio, Western Division

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH ROSE, Defendant.

          ORDER

          Michael R. Barrett, United States District Judge.

         This matter is before the Court on Defendant's fifth[1] motion for appointment of counsel in the context of collateral proceedings (Doc. 194), his Motion to Disqualify (Doc. 195), and his Motion for Relief 60(b). (Doc. 206).

         I. BACKGROUND

         The Court incorporates by reference its prior case summary contained in its Opinion and Order dated September 6, 2018. (Doc. 191) (the “§ 2255 Order”). Among other things, this Order denied § 2255 relief on the following claims:

(1) this Court improperly denied his motion to suppress; (2) this Court abused its discretion in refusing to reopen suppression hearing when presented with new evidence; (3) this Court erred in denying Petitioner's motion to dismiss the Superseding Indictment because his acts were wholly intrastate; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel.

(Id. at PAGEID #: 1001). Defendant appealed the § 2255 Order, [2] which the Sixth Circuit construed as an application for a certificate of appealability (“COA”) and denied. (Doc. 204). About two months after the § 2255 Order, and prior to the adjudication of that appeal, Defendant filed the pending motions to appoint and to disqualify. (Docs. 194, 195). Following the adjudication of that appeal, Defendant filed the pending Rule 60(b) motion for relief from the § 2255 Order exactly one year after its entry.[3]

         II. LAW AND ANALYSIS

         A. Motion to disqualify

         The Court begins with whether this case must be assigned to another judge. Defendant cites 28 U.S.C. § 144 as the basis for the undersigned's disqualification, which reads:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Id. (emphasis added). Section 144 is strictly construed, including the requirement of a separate certificate of counsel of record stating that it is made in good faith. Scott v. Metropolitan Health Corp., 234 Fed.Appx. 341, 353 (6th Cir. 2007). The fact that Defendant is pro se does not necessarily negate the requirement. See Hirschkop v. Virginia State Bar Ass'n, 406 F.Supp. 721, 724-25 (E.D. Va. 1975) (“Though plaintiff is, himself, counsel of record, nevertheless no [certification of good faith] was made by plaintiff in either capacity.”) (citing Flegenheimer v. United States, 110 F.2d 379 (3rd Cir. 1936); Town of East Haven v. Eastern Airlines, Inc., 293 F.Supp. 184 (D. Conn. 1969); Freed v. Inland Empire Ins. Co., 174 F.Supp. 458 (D. Utah 1959)). The Sixth Circuit has not weighed in on § 144 requirements in the event of a pro se litigant, though the insistence on strict construction in Scott suggests the requirement would not be excused. Reed-Bey v. Pramstaller, No. 06-10934, 2011 WL 37964, *1 (E.D. Mich. Jan. 5, 2011).

         Even without deciding that issue, the information that Defendant has included in his affidavit is insufficient to warrant disqualification. He devotes five pages in his memorandum to legal arguments and exhibits related to the affidavit for the search warrant in his case-excessively treaded ground at this juncture, which will be discussed elsewhere in this order. But legal disagreements are wholly irrelevant here; alleged facts in connection with a § 144 motion “must relate to ‘extrajudicial conduct rather than … judicial conduct.'” Ullmo ex rel. Ullmo v. Gilmour Acad., 273 F.3d 671, 681 (6th Cir. 2001) (quoting United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983)) (internal quotation marks omitted). Put differently, the bias must arise from the judge's “‘background and association and not from the judge's view of the law.'” Id. (quoting Story, 716 F.2d at 1090) (internal quotation marks omitted). There is no part of Defendant's affidavit that refers to extrajudicial conduct; it deals exclusively with prior legal and factual determinations made in the context of the proceedings. See also Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003) (Recusal unwarranted where “[p]laintiffs base[d] their allegations exclusively on the magistrate judge's orders and oral statements during proceedings related to this action.”).

         Though he does not invoke it, most of the cases Defendant cites deal with a different code section-28 U.S.C. § 455-that requires disqualification “in any proceeding in which [a judge's] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). See, e.g., Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed. 2D 474 (1994); In re Moody, 755 F.3d 891 (11th Cir. 2014); United States v. Adams, 722 F.3d 788 (6th Cir. 2013); In re United States, 441 F.3d 44 (1st Cir. 2006); Parham v. Johnson, 7 F.Supp.2d 595 (W.D. Pa. 1998). In this context, ...


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