Frank Vuono, Appellant, v. United States of America, Appellee, 441 F.2d 271 (4th Cir. 1971)

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US Court of Appeals for the Fourth Circuit - 441 F.2d 271 (4th Cir. 1971) April 16, 1971

Frank Vuono, pro se.

George Beall, U. S. Atty., Baltimore, Md., for appellee.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.


Frank Vuono is presently serving three concurrent sentences for robbing a savings and loan institution in violation of 18 U.S.C. § 2113. He has filed a motion for vacation of sentence under 28 U.S.C. § 2255. As is customary, the motion is now pending before the same District Judge who presided over the jury trial which resulted in the three convictions at issue in the 2255 motion. This appeal is taken from the denial of Vuono's motion pursuant to 28 U.S.C. § 144 to transfer the case to another judge on the ground that the present judge is biased and prejudiced.

The ruling appealed from is clearly interlocutory in nature and not appropriate for review prior to final action by the District Court on the underlying cause of action. As the Second Circuit has stated with regard to this precise issue, " [a] determination of a District Judge not to disqualify himself is ordinarily reviewable only upon appeal from a final decision on the cause in which the application by affidavit was filed." Dubnoff v. Goldstein, 385 F.2d 717, 721 (2nd Cir. 1967); accord, Rosen v. Sugarman, 357 F.2d 794 (2nd Cir. 1966); Albert v. United States District Court for Western District of Michigan, Northern Division, 283 F.2d 61 (6th Cir. 1960); Green v. Murphy, 259 F.2d 591 (3rd Cir. 1958).

Accordingly, the appeal is