United States v. Buckelew

• Decision Date: 10 May 1977
• Docket Number: Crim. A. No. 20551,74-21.
• Citation: 454 F. Supp. 969
• Parties: UNITED STATES of America v. Raymond Lynn BUCKELEW and James Laney Jenkins. UNITED STATES of America v. Judson Lee DRANE.
• Court: U.S. District Court — Western District of Louisiana

454 F. Supp. 969

UNITED STATES of America v. Raymond Lynn BUCKELEW and James Laney Jenkins.

UNITED STATES of America v. Judson Lee DRANE.

Crim. A. Nos. 20551, 74-21.

United States District Court, W. D. Louisiana, Shreveport Division.

May 10, 1977.

R. W. Laster and James F. Lane, Little Rock, Ark., for defendants.

Edward L. Shaheen, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for United States.

RULING

ON MOTIONS TO VACATE OR SET ASIDE SENTENCES

DAWKINS, Senior District Judge.

On February 17, 1977 Raymond Lynn Buckelew and James Laney Jenkins, through new retained counsel, filed a motion to vacate or set aside sentence. On March 24, 1977 Judson Lee Drane, through the same newly retained counsel, filed a motion to vacate or set aside sentence. These cases are consolidated for determination of the above styled motions.

Present counsel for these petitioners did not participate in pre-trial or trial proceedings. Apparently, his first connection with the case was when, after petitioners' convictions and sentences were affirmed on appeal, and rehearing denied, as set forth infra, he was appointed to represent Buckelew and Jenkins in applying to the Supreme Court for writs of certiorari, which also were denied.

The motions to vacate were brought pursuant to 28 U.S.C. § 2255, amended by Public Law 94-426 of September 28, 1976, 90 Stat. 1334, "Rules governing section 2255 proceedings for the United States district courts", effective February 1, 1977.

On February 17, 1977 Buckelew and Jenkins also filed a motion to continue them on bond or to be enlarged upon a new bond. This motion was referred to James M. Barton, United States Magistrate, in accordance with Local Court Rule 28 C. 8, and 28 U.S.C. § 636(b). The bond hearing was conducted on the afternoon of February 17, 1977 and upon its conclusion petitioners were ordered committed to serve their sentences in accordance with the mandate received by the Clerk of this Court from the United States Court of Appeals for the Fifth Circuit. Following that hearing, Magistrate Barton made a report and recommendation to the Court. After receiving this, a written ruling, with reasons, was entered by the undersigned Judge after considering the case de novo, adopting the Magistrate's report and denying the motion to remain enlarged on bond.

Judson Lee Drane likewise filed a motion to be enlarged on bond on March 24, 1977. A written ruling was made upon this motion on March 25, 1977, denying it for the same reasons set forth earlier with respect to Buckelew and Jenkins.

Through counsel, Buckelew and Jenkins filed a motion to disqualify the undersigned Judge and to transfer the case to another division in this District, or to another judge. Judson Lee Drane later filed the same motion. These motions then were denied as being premature since the record had not been returned from the appellate court, petitioners having appealed their convictions and sentences to the United States Court of Appeals for the Fifth Circuit, which affirmed their convictions and sentences, United States v. Scallion, et al., 533 F.2d 903 (5th Cir., 1976). Buckelew and Jenkins, through counsel, then twice applied for writs of certiorari to the United States Supreme Court. These were denied. After his report and recommendations were made by Magistrate Barton, petitioners Buckelew and Jenkins filed a motion to vacate his ruling, report and recommendation, and also that he, too, be disqualified from further performance of his § 2255 duties under the terms and provisions of 28 U.S.C. § 455(b)(1).

Before proceeding further, we must deal with the auxiliary motion to disqualify the undersigned Judge from this proceeding. Any opinion a trial judge may have had as to any of the defendants, which was not obtained from extrajudicial sources, but only from the Court's handling of the defendants during trial, is not a basis for disqualifying that judge from passing upon this § 2255 motion.

In Morrison v. United States, 432 F.2d 1227 (5th Cir., 1970), the Court stated:

"There is no merit to the contention that the District Judge, who as sentencing judge had seen appellant's presentence report, was barred as a matter of law from acting on the motion to vacate because possessed of information concerning the appellant not formally introduced into evidence. For sound reasons the sentencing judge is allowed to have and to employ that data in the first instance. His knowledge does not bar him from acting on a § 2255 motion."

In United States v. Franks, 511 F.2d 25 (6th Cir., 1975), the Court stated:

"The claim that the district judge should have recused himself from trying Mitchell is untenable. First, there is no showing that Mitchell's attorney of record certified the good faith of Mitchell's affidavit claiming bias and prejudice. United States v. Thomas, 299 F.Supp. 494, 500 (E.D.Mo.1968). Second, even assuming procedural compliance with 28 U.S.C. § 144 (1970), Mitchell's allegations that the district judge had cited him for contempt at best demonstrate judicial, as opposed to personal bias. Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir., 1974); United States v. Roca-Alvarez, 451 F.2d 843, 848 (5th Cir., 1971); Hanger v. United States, 398 F.2d 91, 100-1001 (8th Cir., 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Garrison, 340 F.Supp. 952, 956-957 (E.D.La.1972). Third, much of Mitchell's affidavit contains `scurrilities and generalities which fall far short of the specificities required by statute.' Griffith v. Edwards, 493 F.2d 495, 496 (8th Cir., 1974); Martelli v. City of Sonoma, 359 F.Supp. 397, 400 (N.D.Cal.1973)."

In Beland, et al. v. United States, 117 F.2d 958 (5th Cir., 1941), an affiant expressed fear that the judge was not impartial, said fear having been increased by the severity of sentences imposed in other narcotic cases. The Court held the allegations did not satisfy the statute which was designed to disqualify a judge because of personal bias and prejudice and not because of his rulings and sentences which were not acceptable to the affiant.

In Barry v. Sigler, 373 F.2d 835 (8th Cir., 1967), the Court stated:

"Merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings, or has found it necessary to cite a party for contempt, does not automatically or inferentially raise the issue of bias. As stated by the court in Lyons v. United States, 9 Cir. 1963, 325 F.2d 370, 376, cert. den. 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738, which ruled that affidavits filed under § 144 were legally insufficient: `The section 144 is directed to personal bias, which means an attitude of extrajudicial origin. A mere showing of prior judicial exposure to the present parties or questions will not invoke the section.' See also Cox v. United States, 8 Cir. 1962, 309 F.2d 614, 619-620; Barnes v. United States, 9 Cir., 1956, 241 F.2d 252; United States v. Lowrey, W.D.Pa. 1948, 77 F.Supp. 301, 302, aff'd 172 F.2d 226 and 179 F.2d 964, cert. den. 339 U.S. 969, 70 S.Ct. 986, 94 L.Ed. 1377; United States v. Sansone, 2 Cir., 1963, 319 F.2d 586."

See also, United States v. Avilla, 443 F.2d 792 at 794, 795 (5th Cir., 1971).

Even where allegations of bias are made pursuant to the provisions of 28 U.S.C. § 144, and the Court finds the factual allegations to be legally insufficient, there arises a duty on the part of the judge to continue in the case. See Firnhaber v. Sensenbrenner, Jr., 385 F.Supp. 406 (E.D. Wis., 1974); United States v. Sclafani, 487 F.2d 245 (2d Cir., 1973), cases cited at p. 255, cert. denied, 414 U.S. 1023, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973).

Accordingly, it being our duty to hear this matter, the motion to disqualify or to transfer this matter hereby is denied.

On February 25, 1977, in accordance with Rule 4 of § 2255, by memorandum order, we directed the United States Attorney to file an answer, supported by brief, to the motion to vacate or set aside sentence, and motion to disqualify filed by Buckelew and Jenkins, within twenty (20) days after receipt of the complete record in the case by the Clerk of this Court from the Appellate Court. A similar order was entered in the matter of Judson Lee Drane, ordering the United States Attorney to file an answer to the motions Drane had filed in the case, together with a brief and any pertinent records. The record and exhibits were returned to this Court on March 31, 1977; and on April 11, 1977 the United States Attorney filed a response and supporting brief. Attached to his response are the affidavits of the two Assistant United States Attorneys who prosecuted the case, Messrs. L. Edwin Greer and Joseph Cage, who now are in private practice. Also attached is an affidavit made by Special Agent John Pfeifer, FBI, who was in the courtroom throughout trial.

Buckelew and Jenkins, in their motion to vacate or set aside sentence, made a "statement of the case" asserting that "on September 24, 1974, after pleas of not guilty, they and the other defendants went to trial in the United States District Court for the Western District of Louisiana, Shreveport Division, before the Honorable Ben C. Dawkins, Jr., for allegedly defrauding certain Las Vegas hotel casinos by means of telephone calls, in violation of 18 U.S.C. § 1343, and allegedly conspiring to commit fraud in violation of 18 U.S.C. § 371. These defendants did not testify at their trial. Obviously because of criminal records. See the records of Buckelew, Jenkins and Drane, as shown by Xerox copies of excerpts from their pre-sentence reports, appended. On October 4, 1974 the jury convicted these two defendants on both counts, and each was sentenced to three years on each count, the sentences to run consecutively. Drane was convicted on the conspiracy count, and was sentenced to three years imprisonment.

"Timely appeal was taken to the United States Court of Appeals for...