United States v. Rose

• Decision Date: 21 November 2019
• Docket Number: CRIMINAL CASE NO. 1:09-cr-047,CIVIL CASE NO. 1:14-cv-809
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KENNETH ROSE, Defendant.
• Court: U.S. District Court — Southern District of Ohio

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

CRIMINAL CASE NO. 1:09-cr-047

CIVIL CASE NO. 1:14-cv-809

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

November 21, 2019

Judge Michael R. Barrett

ORDER

This matter is before the Court on Defendant's fifth¹ 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 F. App'x 341, 353 (6th Cir. 2007). The fact that Defendantis 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] theirallegations 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, the Supreme Court has left open the possibility of disqualification arising solely from a judge's involvement with the proceedings. But the bar is high:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

Liteky, 510 U.S. at 555 (emphasis added). The Sixth Circuit, applying Litkey, declined to find impartiality even where a judge's statements "amount[ed] to criticism and disapproval of defendants[.]" Adams, 722 F.3d at 838 (6th Cir. 2013). Defendant does not go even that far in his specific invocations of the undersigned in his affidavit—noting only that:

9. Judge Barrett erroneously claims "the search warrant affidavit" (emphasis added) included and described "the place to be searched' . . . despite the fact the Affidavit/Application absolutely does not[.]

10. Judge Barrett does not acknowledge 'Fraud upon Court' (Doc. 190) as extraordinary circumstances, nor at all, despite it's (sic) impact on both trial and appellate proceedings.

(Doc. 195-1, PAGEID #: 1024). These allegations of bias or impartiality (if they can truly be characterized as such), along with the legal arguments forming the balance of Defendant's affidavit and motion, do not meet the threshold for disqualification under either § 144 or § 455. The motion will be denied.

B. Motion for appointment of counsel

The Sixth Amendment right to appointed counsel "extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987). The appointment of counsel in the context of § 2255 is warranted only when "the interest of justice so requires." 18 U.S.C. § 3006(A)(a)(2)(B). (See also Docs. 131, 142, 178). In this iteration, Defendant's motion raises seven reasons why counsel should be appointed.

First, he argues that a fraud has been perpetrated upon the Court by Plaintiff. Review of the portions of the record that he cites in support⁴ suggest that Defendant uses the word "fraud" to refer to unfavorable determinations by this Court. Relatedly, as his second reason, he cites "errors of fact and law" in the § 2255 Order that are, in fact, determinations of fact and law with which Defendant disagrees. Neither reason mandates the appointment of counsel under the 18 U.S.C. § 3006A standard. His third and fourth reasons relate to his ability to represent himself—the latter pertaining to obsessive compulsive disorder, in particular. This Court has already found that Petitioner issufficiently capable to represent himself and presents no additional information that would cause the Court to revise its assessment. (Doc. 131, PAGEID #: 683 ("Petitioner argues that his obsessive compulsive disorder make it difficult for him to articulate, frame and litigate his habeas claims. . . . Petitioner's filings to date demonstrate that he is able to frame the issues and sufficiently organize his arguments.")). Defendant's fifth and sixth reasons concern the Clerk's refusal to discount ECF copies and his appellant's counsel's failure to provide copies. Without any substantive reason for the appointment of counsel, these alleged issues of access to the record do not in and of themselves necessitate the appointment of counsel.

Defendant's seventh reason is a bare restatement of 18 U.S.C. § 3006A's language—that appointment is "in interests of justice." The Court is no more convinced of this than it was in any of Defendant's prior seven motions. The motion will be denied.

C. Rule 60(b) motion

Defendant brings his third pending motion under Fed. R. Civ. P. 60(b)(6). The legal framework for reviewing a Rule 60(b) motion in collateral proceedings was set out in In re Nailor, 487 F.3d 1018 (6th Cir. 2007). In Nailor, the Court noted that Rule 11 of the Rules Governing Sec. 2255 Proceedings for the U.S. Dist. Courts establishes that the Federal Rules of Civil Procedure apply in § 2255 proceedings; but according to Rule 12, only to the extent "not inconsistent with any statutory provisions or these rules."...