U.S. v. Olis

• Decision Date: 31 July 2008
• Docket Number: Criminal No. H-03-217-01.,Civil Action No. H-07-3295.
• Citation: 571 F.Supp.2d 777
• Parties: UNITED STATES of America v. Jamie OLIS.
• Court: U.S. District Court — Southern District of Texas

Page 777

571 F.Supp.2d 777

UNITED STATES of America v. Jamie OLIS.

Civil Action No. H-07-3295.

Criminal No. H-03-217-01.

United States District Court, S.D. Texas, Houston Division.

July 31, 2008.

COPYRIGHT MATERIAL OMITTED

Theodore W. Cassman, Arguedas, Cassman & Headley, LLP, Berkeley, CA, for Petitioner.

James L. Turner, US Attorneys Office, Houston, TX, for Respondent.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Pending before the court are the following four instruments filed on behalf of defendant, Jamie Olis, seeking the court's recusal: Letter requesting recusal (Docket Entry No. 347),¹ Motion to Recuse (Docket Entry No. 350), Motion to Recuse Judge Sim Lake Under 28 U.S.C. §§ 144 & 455(a) and (b)(1) (Docket Entry No. 352), and Supplemental Motion to Recuse (Docket Entry No. 355). After careful consideration of these instruments and the government's responses thereto, the court concludes that all the pending requests and motions to recuse should be denied.

I. Background

On October 5, 2007, Olis filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Docket Entry No. 305 in Crim. No. H-03-217), and a Motion for Release on Bail (Docket Entry No. 307). In his motion to vacate Olis asserts the following claims: (1) the government violated his Fifth and Sixth Amendment rights to present the defense of his choice by coercing Dynegy to stop funding his defense; (2) the government violated his Fifth Amendment rights by constructively amending the indictment; and (3) he did not receive constitutionally adequate assistance of counsel.² On November 28, 2007, Olis filed a Motion for Discovery (Docket Entry No. 327), and on December 12, 2007, Olis filed a Motion for Leave to File Amici Curiae Brief (Docket Entry No. 332). On March 3, 2008, the court issued a Memorandum Opinion and Order (Docket Entry No. 344) denying Olis' motion for release on bail, motion for discovery, and motion to file amici curiae brief. The legal standards that the court applied in ruling on these motions and the reasons why they were denied are stated in the court's March 3, 2008, Memorandum Opinion and Order (Docket Entry No. 344).

On April 30, 2008, attorney Lloyd Kelley delivered to the court a confidential letter written on Olis' behalf asking the undersigned judge (hereinafter "the court") to recuse himself from this case. Because Kelley failed to file the letter, and because the letter contained no indication that it had been served on the government, the court filed the letter (Docket Entry No. 347) and entered an Order directing the government to respond (Docket Entry No. 348). Since then, Olis has filed three motions seeking the court's recusal: the first on May 6, 2008 (Docket Entry No. 350); the second on May 27, 2008 (Docket Entry No. 352); and the third on June 7, 2008 (Docket Entry No. 355). Because each of Olis' motions advance essentially the same grounds for recusal, the court will treat them as a single consolidated motion and instead of addressing each motion individually will address each of Olis' grounds for recusal.

Olis' recusal requests are grounded on two of the claims alleged in his motion to vacate, his claim that the government violated his Fifth and Sixth Amendment rights to present the defense of his choice and his claim that his trial counsel was ineffective. The substance of Olis' claim that the government violated his Fifth and Sixth Amendment rights to present the defense of his choice is that former United States Attorney for the Southern District of Texas, Michael Shelby, coerced Dynegy to stop funding his defense. The substance of Olis' recusal request based on this claim is that the court and Shelby were close personal friends, and recusal is warranted under 28 U.S.C. § 144 because this friendship causes the court to be actually biased against Olis, and/or that recusal is warranted under 28 U.S.C. § 455(a) because this friendship might reasonably cause the court's impartiality to be questioned. One of the reasons Olis argues he lacked effective assistance of counsel at trial is that his attorney failed to object to an ex parte communication the court had with a juror. Thus, Olis argues that recusal is warranted under 28 U.S.C. § 455(a) because this claim requires the court to rule on the propriety of his own acts and under 28 U.S.C. § 455(b)(1) because the court has personal knowledge of evidentiary facts pertaining to this claim. The government argues that Olis' § 144 motion should be denied because the declaration that Olis has submitted in support thereof is insufficient, that Olis' § 455 motions should be denied because no reasonable and objective person, knowing all of the facts, would harbor doubts concerning the court's ability to be impartial when ruling on the claims alleged in Olis' motion to vacate, and that all of Olis' requests and/or motions to recuse are untimely.

II. Olis' Motion Under 28 U.S.C. § 144

Asserting that the court and Shelby were close personal friends, Olis argues that recusal is warranted under 28 U.S.C. § 144 because this friendship causes the court to be actually biased against him and in favor of upholding his conviction, which Shelby helped to obtain by coercing Dynegy to stop funding his defense. The government argues that Olis' § 144 motion should be denied because it is untimely and Olis' declaration in support of it is legally insufficient.³ The court agrees.

A. Applicable Law

28 U.S.C. § 144 provides that

[w]henever 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.

"Section 144 relates only to charges of actual bias." Henderson v. Department of Public Safety & Corrections, 901 F.2d 1288, 1296 (5th Cir.1990) (citing In re Faulkner, 856 F.2d 716, 720 n. 6 (5th Cir.1988)). "Once the affidavit is filed ... there are three issues to be determined: (1) was the affidavit timely filed; (2) was it accompanied by the necessary certificate of counsel of record; and (3) is the affidavit sufficient in statutory terms?" Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir.1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

B. Analysis

1. Timeliness

Section 144 requires the moving party to file an affidavit "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." 28 U.S.C. § 144. Since formal terms of court were abolished long ago, the literal ten-day requirement no longer applies. Instead, courts simply require exercise of reasonable diligence in filing an affidavit after discovering facts that show bias, or an explanation of good cause for failing to do so. See Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658 (5th Cir.1985) (citing Smith v. Danyo, 585 F.2d 83, 86 (3d Cir.1978) ("timeliness of a § 144 motion turns not solely on the actual time elapsed, but on other factors as well. For example, courts will often, consider whether the affiant has participated in substantial pretrial motions between the time he first learned of the asserted bias and the time he filed the § 144 request")). Olis' § 144 motion for recusal is untimely because Olis neither identifies any facts on which it is based that he did not know before he filed his motion to vacate (Docket Entry No. 305) on October 5, 2007, nor offers any explanation that could be construed as good cause for failing to file his § 144 motion before the court expended substantial amounts of time and judicial resources ruling on his ancillary Motions for Release on Bail, Discovery, and Leave to File Amici Curiae Brief.

The documentary evidence that Olis submits in support of his § 144 motion shows that the facts stated in his declaration of support were publicly available well before he filed his motion to vacate on October 5, 2007.⁴ For example, the "history" tabs of the Wikipedia entries on which Olis relies show that all of the facts about the court's and Shelby's common backgrounds was available before October 5, 2007. Review of the newspaper articles and blog entries attached to Olis' declaration similarly shows that they all predate the filing of his motion to vacate on October 5, 2007.⁵ Since the filing of Olis' motion to vacate, the court has expended substantial amounts of time and judicial resources considering Olis' Motions for Release on Bail, Discovery, and Leave to File Amici Curiae Brief, all of which would have been unnecessary if Olis had a valid basis for recusal under § 144. Since all the documentary evidence that Olis has cited in support of the facts stated in the declaration underlying his § 144 motion was publicly available before Olis filed either his motion to vacate or his motions for bail, discovery, or leave to file an amicus brief, and since Olis has neither stated nor argued that he discovered any of the factual information on which he relies after he filed any of these motions, Olis had a duty to file his § 144 motion for recusal before the court's judicial resources were spent on resolution of those motions. Since Olis neither argues nor explains why his delay in filing his motions to recuse until after the court ruled...