In Re: Charles G. Dicola, Petitioner, 9 F.3d 1543 (4th Cir. 1993)

OPINION

Charles G. DiCola has filed a petition for writ of mandamus in this Court to compel the district court to expedite its consideration of his28 U.S.C. § 2255 (1988) motion attacking his sentence and his accompanying motions for recusal of the district court judge and for bail pending the outcome of his § 2255 motion. Because we find no unreasonable delay in the court's consideration of his action, we deny DiCola's petition for writ of mandamus.

DiCola complains that the district court has not yet acted on his § 2255 motion or his accompanying motions to recuse the judge and for bail pending the disposition of his habeas corpus motion. Approximately three months have passed since DiCola filed these motions and his supplement to his § 2255 motion. We do not consider this to be an undue delay in the court's consideration of his habeas motion or his other accompanying motions.

A judge's refusal to recuse himself is reviewable in this Court by way of mandamus. In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). Bias must be extrajudicial to warrant recusal. A judge's bias must be personal and not arise out of the litigation. Id. Recusal is not required merely because a judge is familiar with a case due to his judicial involvement with prior proceedings. Id. DiCola's grounds for recusal concern only the judge's involvement in his criminal proceedings and therefore do not warrant recusal.

For these reasons, we deny the petition for writ of mandamus. However, our denial of the petition is without prejudice to DiCola's right to refile if the court does not act on the case within a reasonable time. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

PETITION DENIED