Holloway v. U.S.

• Decision Date: 23 April 1992
• Docket Number: No. 90-2648,90-2648
• Citation: 960 F.2d 1348
• Parties: Bruce E. HOLLOWAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1348

960 F.2d 1348

Bruce E. HOLLOWAY, Appellant, v. UNITED STATES of America, Appellee.

No. 90-2648.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1991.

Decided March 13, 1992.

Rehearing and Rehearing En Banc

Denied April 23, 1992.

John Marshall, Clayton, Mo., argued, for appellant.

Raymond Gruender, St. Louis, Mo., argued, for appellee.

Before JOHN R. GIBSON, BOWMAN, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

Bruce E. Holloway appeals from the final order of the District Court ¹ denying his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (1988); his motion for discovery, appointment of counsel, and an evidentiary hearing; and his motion to disqualify the district judge. We affirm.

On July 25, 1985, Holloway was indicted on one count of conspiring to possess cocaine with the intent to distribute and five counts of distributing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1982). On December 2, 1985, he entered into a plea agreement that provided for the government to dismiss two of the distribution charges and for Holloway to plead guilty to the remaining charges. Prior to accepting Holloway's pleas, Judge Wangelin ² informed him that he could be sentenced to fifteen years in prison on each of the four counts to which he pled guilty resulting in a total sentence of as much as sixty years. Judge Wangelin did not inform him that, in addition, he could be sentenced on each count to a special parole term.

On January 6, 1986, Judge Wangelin sentenced Holloway to a fine of $7,000 and a prison term of twenty-five years, to be followed by a special parole term of twenty years. ³ Holloway did not appeal. However, he filed a number of post-conviction motions under Fed.R.Crim.P. 35, 18 U.S.C. app. Rule 35 (1982 & Supp. IV 1986), in effect at the time, requesting that his sentence be reduced or modified. All these motions were denied. ⁴

Holloway later filed the present motion under 28 U.S.C. § 2255. In that motion he seeks to have his conviction and sentence vacated or corrected. He also seeks permission to take out of time a direct appeal from his conviction and sentence as well as from the District Court's denials of his Rule 35 motions. He claims that he is entitled to this relief because Judge Wangelin: (1) violated Fed.R.Crim.P. 11(c), (e), 18 U.S.C. app. Rule 11(c), (e) (1982 & Supp. III 1985), by accepting Holloway's guilty pleas without informing him of the possibility of receiving a special parole term; (2) violated Fed.R.Crim.P. 32(a)(1), (c)(3)(A), 18 U.S.C. app. Rule 32(a)(1), (c)(3)(A) (Supp. III 1985), by failing to mention Holloway's presentence investigation prior to sentencing him; (3) was biased against Holloway; and (4) did not credit Holloway's sentence to reflect his cooperation with the authorities. In addition, Holloway claims that he was denied effective assistance of counsel, that his sentence constitutes cruel and unusual punishment and a violation of due process, and that his sentence is illegally ambiguous. He also filed a motion for discovery, appointment of counsel, and an evidentiary hearing as well as a motion asking Judge Limbaugh to disqualify himself.

Judge Limbaugh denied the disqualification motion. He referred Holloway's section 2255 motion and the motion for discovery, appointment of counsel, and an evidentiary hearing to a magistrate ⁵ pursuant to 28 U.S.C. § 636(b)(1)(B) (1988). The magistrate concluded that Holloway's section 2255 motion could be denied on the record and therefore found no reason for discovery, appointment of counsel, or an evidentiary hearing. Accordingly, the magistrate recommended the denial of all of Holloway's motions. Over Holloway's objections, the District Court adopted the magistrate's recommendations ⁶ and denied Holloway's motions.

Holloway appeals, arguing that Judge Limbaugh erred in denying his section 2255 motion because: (1) Holloway would not have pled guilty if the District Court had complied with Rule 11; (2) the District Court sentenced him without complying with Rule 32; (3) his counsel was ineffective in that he failed to move for Judge Wangelin's disqualification, failed to ensure the enforcement of Rules 11 and 32, and failed to file a direct appeal on these grounds; (4) Judge Wangelin was biased and, as a result, he gave Holloway an illegally ambiguous, excessively harsh sentence with no credit for his cooperation with the government; and (5) the twenty-year special parole term written into his judgment conflicts with Judge Wangelin's oral pronouncement of an aggregate ten-year special parole term. He also argues that Judge Limbaugh erred in refusing to disqualify himself and in denying the motion for an evidentiary hearing, discovery, and appointment of counsel. ⁷

I.

We first consider Judge Limbaugh's denial of Holloway's disqualification motion. Holloway filed an affidavit in support of this motion in which he alleges that Judge Limbaugh's impartiality reasonably might be questioned because: (1) Judge Limbaugh denied Holloway's motion for a reduction in sentence but granted a similar motion by one of Holloway's more culpable co-defendants; and (2) Judge Limbaugh was a personal friend of Judge Wangelin who, Holloway alleges, harbored a bias against him. Judge Limbaugh denied this motion without comment.

Judges have an affirmative duty:

to probe the legal sufficiency of [a] petitioner's affidavit of prejudice and not to disqualify themselves unnecessarily. Affidavits based on conclusions, opinions, and rumors are an insufficient basis for recusal. For recusal to be necessary, the bias must be personal and extra-judicial.

Davis v. Commissioner, 734 F.2d 1302, 1303 (8th Cir.1984) (per curiam) (citations omitted). In addition, disqualification is necessary only if the facts contained in the affidavit "would provide an objective, knowledgeable member of the public with a reasonable basis for doubting [the] judge's impartiality." Perkins v. Spivey, 911 F.2d 22, 33 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991). ⁸ We are satisfied that Holloway's allegations would not give a reasonable person factual grounds upon which to doubt Judge Limbaugh's impartiality. His first allegation complains of nothing more than an unfavorable judicial ruling which is insufficient to require disqualification absent a showing of "pervasive personal bias and prejudice," Davis, 734 F.2d at 1303, a showing Holloway does not make. His second allegation also must fail. That Judge Limbaugh and the late Judge Wangelin may have been friends is not a compelling reason for Judge Limbaugh to disqualify himself in this case. And in any event, we find insufficient Holloway's allegations that Judge Wangelin was biased against him. See infra part II.C. For these reasons, we sustain Judge Limbaugh's refusal to disqualify himself.

II.

Next we consider the denial of Holloway's section 2255 motion. "We apply the same standards of review in a § 2255 proceeding as in a habeas corpus proceeding," Cassidy v. United States, 428 F.2d 585, 588 n. 1 (8th Cir.1970), and in such proceedings we review de novo district court conclusions regarding issues of law, see, e.g., Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989), as well as issues involving mixed questions of law and fact. See, e.g., Ford v. Lockhart, 904 F.2d 458, 460 (8th Cir.1990). As Holloway's section 2255 claims were denied without an evidentiary hearing, to affirm the District Court we must be persuaded by our de novo review that "the motion and the files and records of the case conclusively show that [he] is entitled to no relief." 28 U.S.C. § 2255.

A.

Holloway's claims that Judge Wangelin violated Rule 32, that the sentence imposed by Judge Wangelin constitutes cruel and unusual punishment and a denial of due process, and that Holloway's sentence was not properly credited for his cooperation with the authorities are meritless and require little discussion. Holloway concedes all three of the bases upon which the District Court denied his Rule 32 claim--that he and his counsel did review and comment on his presentence report, that he did not raise this Rule 32 claim in any of his Rule 35 motions, and that he was not sentenced on the basis of any incorrect information. See Appellant's Pro Se Br. at 6-7; Appellant's Pro Se Reply Br. at 1-2; Appellant's Supplemental Br. at 29. He offers no additional reasons based upon Rule 32 for section 2255 relief. ⁹ Thus, we find no error in the denial of this claim.

To successfully challenge his sentence (which is a pre-guidelines sentence) as excessive, as disproportionate relative to the sentences of his co-defendants, or as failing to reflect adequately his cooperation with the authorities, Holloway must " 'present a clear and convincing case of abuse of discretion ... or a patent violation of a constitutional guarantee.' " United States v. Garcia, 785 F.2d 214, 228 (8th Cir.) (quoting Orner v. United States, 578 F.2d 1276, 1280 (8th Cir.1978)), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986); see also United States v. Cox, 921 F.2d 772, 775 (8th Cir.1990). Holloway does not assert that his sentence exceeds that authorized by law, and his bald assertions that his sentence is too harsh, that it does not reflect his cooperation with the authorities, and that more culpable co-defendants received shorter sentences are insufficient to show either an abuse of discretion or a violation of a constitutional guarantee.

B.

Holloway argues that he is entitled to relief under section 2255 because the District Court violated Rule 11 by accepting his guilty plea without informing him that his sentence could include a special parole term. He argues that if he had known about the possibility of a special parole term, he would not have pled guilty, and he concludes, therefore, that his conviction and sentence should be vacated and he should be permitted...