Gray v. USA, No. 8:1997cv04287 - Document 6 (D. Md. 2012)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/21/2012. (c/m 6/21/12 rs) (rss, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : v. : LINWOOD GRAY, DARRELL BRACEY, and RONALD HUMPHRIES Criminal No. DKC 94-0241 : : ---------- LINWOOD GRAY : v. : UNITED STATES OF AMERICA Civil Action No. DKC 97-4287 : ---------- RONALD HUMPHRIES : v. : UNITED STATES OF AMERICA Civil Action No. DKC 97-4288 : ---------- DARRELL BRACEY : v. : UNITED STATES OF AMERICA Civil Action No. DKC 97-4289 : MEMORANDUM OPINION Pending inmates before Linwood (collectively, the Gray, court Ronald Petitioners ) are motions Humphries, for recusal filed and of by Darrell the federal Bracey undersigned judge (ECF No. 287) and reconsideration of an order denying their motion pursuant to Fed.R.Civ.P. 60(b) (ECF No. 285). For the reasons that follow, both motions will be denied. I. Background On February 21, 1995, following a jury trial, Petitioners were found guilty of participating distribution conspiracy. in a heroin and cocaine Petitioners Gray and Humphries were also convicted of distribution of heroin. Following sentencing, Petitioners collectively appealed to the United States Court of Appeals for convictions. the Fourth Circuit, which affirmed their Thereafter, the Supreme Court of the United States denied certiorari. In December 1997, Petitioners filed separate, but nearly identical, pro alleging, se inter motions alia, that pursuant the to 28 U.S.C. Government: (1) § 2255, knowingly introduced at trial the perjured testimony of various witnesses, and (2) obstructed justice by causing another witness, who testified before the grand jury, to be unavailable at trial, and by fabricating and/or withholding various pieces of evidence. Petitioner Gray additionally filed a motion seeking leave to conduct discovery. By an order dated September 8, 1999, the court motions. denied those Petitioners subsequently sought review of that decision, but the Fourth Circuit denied their requests for certificates of appealability and dismissed their appeals. Over the next several years, Petitioners filed motions 2 pursuant to 28 U.S.C. successive petitions. § 2244, seeking permission to file Those motions were also denied by the Fourth Circuit. On or about April 6, 2007, Petitioners filed a motion entitled Joint Motion to Reinstate 28 U.S.C. § 2255 Habeas Petitions, seeking relief pursuant to Fed.R.Civ.P. 60(b)(6). Petitioners alleged that the court s denial of their respective § 2255 petitions was based upon material and deliberate fraud perpetrated upon the court during the trial and post-conviction proceedings. that the (ECF No. 272, at 1). Government violated employing perjury[;] government witness; evidence; enforcement procuring the due process material false filing violating 16[;] (Id.) (emphasis removed). and rights unavailability and officials; Rule their suppressing preparing Fed.R.Crim.P. Specifically, they argued Brady, paying and of government key exculpatory affidavits Giglio, a by by law Lewis[, and] witnesses. Petitioners further claimed that the court erred by ruling on their petitions without conducting a hearing, and that if an evidentiary hearing had been held, the requested relief would have been granted. Petitioners sought to have the prior judgment set aside and [to] be allowed to amend their prior § 2255 motions in order to have the motions determined anew. (Id. at 4). 3 By a memorandum opinion and order issued December 8, 2009, the court denied Petitioners Rule 60(b) motion. 284). To prevail on a motion under Rule (ECF Nos. 283, 60(b), the court explained, Petitioners were required to show that (1) the motion is timely, (2) there is a meritorious defense, and (3) the opposing party would not suffer unfair prejudice by having the judgment set aside. the catch-all specifically demonstrate (Id.). (ECF No. 283, at 6). provision invoked by of subsection Petitioners, extraordinary Additionally, under they circumstances (b)(6), which was were required to warranting relief. The court found that Petitioners failed to establish that their motion, filed well over seven years after their § 2255 petitions were denied, was timely, and that they did not come close to establishing extraordinary circumstances sufficient to permit the reinstatement of their § 2255 petitions at this late date. (Id. at 11). On December 30, 2009, Petitioners filed the pending motion for reconsideration (ECF No. 285) and, on December 21, 2010, they moved for recusal of the presiding judge (ECF No. 287). II. Motion for Recusal A. Standard of Review Petitioners move for the court to be recused from this case pursuant to 28 U.S.C. § 455(a), which provides that [a]ny justice, judge, or magistrate judge of the United States shall 4 disqualify [her]self impartiality might in any reasonably proceeding be in questioned. which The [her] critical question presented by this subsection is not whether the judge is impartial in fact, but rather whether another, not knowing whether or not the judge is actually impartial, might reasonably question [her] circumstances. impartiality on the basis of all the United States v. DeTemple, 162 F.3d 279, 286 (4th Cir. 1998), cert. denied, 526 U.S. 1137 (1999) (internal marks and citations omitted). The Fourth Circuit has thus adopted an objective standard which asks whether the judge s impartiality might be questioned by a reasonable, well-informed observer who assesses all the facts and circumstances. Id. (citation omitted); see also Sao Paulo State of the Federative Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 232-33 (2002) (per curiam) (reaffirming the holding of Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), that § 455(a) requires judicial recusal if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge of his interest or bias in the case ). See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). 5 B. Analysis At the outset, the court is satisfied that it may decide this motion for recusal. Section 144 of Title 28 provides, in pertinent part: 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. It is incumbent upon the judge against whom a § 144 affidavit is filed to rule upon the legal sufficiency of the facts alleged; indeed, [i]t is equally [her] duty . . . to deny the relief claimed on account of the facts stated in the affidavit if they are legally insufficient, as it is to grant relief if they are sufficient. Sine v. Local No. 992 International Brotherhood of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989). The presiding judge is limited, however, to a determination of whether the affidavit (1) is in compliance with the procedural requirements of [§ 144] and (2) alleges with specificity that the judge in question has a personal bias or prejudice either against him or in favor of any 1:07cv714(TSE/TCB), adverse 2007 WL party. 2915072, Wambach at *1 v. Hinkle, (E.D.Va. Oct. No. 4, 2007) (citing Kidd v. Greyhound Lines, Inc., No. 3:04-CV-277, 2004 WL 3756420, at *1 (E.D.Va. Sept. 23, 2004)); see also Sine, 6 882 F.2d at 914 ( To serve as a basis for recusal under § 144, affidavits must be both timely and sufficient. ). The affidavit submitted by Petitioners here fails to meet the procedural requirements of § 144. itself is not in proper form. In fact, the affidavit An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath. Farm Bureau Mut. Ins. Co. v. Hammer, 83 F.Supp. 383, 386 (D.W.D.), rev d on other grounds, 177 F.2d 793 (4th Cir. 1949). Petitioners affidavit, by contrast, is unsworn and does not include the language required by 28 U.S.C. § 1746 for unsworn declarations. The purported affidavit is also untimely. Generally, motions to recuse must be filed at the first opportunity after discovery of the facts tending to prove disqualification. Sine, 882 F.2d at 915 (citing Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512, 515 (4th Cir. 1974); Chafin v. United States, 5 F.2d 592, 595 (4th Cir.), cert. denied, 269 U.S. 552 (1925)). The vast majority of facts alleged by Petitioners appear to have been known to them, at the very latest, by the time the court ruled on their § 2255 motions, i.e., over eleven years prior to the time they filed the instant motion. As Petitioners have provided no explanation for this extended delay, there is no basis for concluding it was occasioned by good cause. U.S.C. § 144. 7 See 28 Moreover, Petitioners matter of law. affidavit is insufficient as a In order to be legally sufficient to warrant recusal, the court must find that (i) the affidavit contains facts, and not conclusions and generalizations, that are material and stated with particularity; (ii) the facts would convince a reasonable person that bias exists; and (iii) the bias alleged is personal and extrajudicial in nature and of such a nature as would result in an opinion on the merits on some basis other than what the judge learned from participation in the case. Wambach, 2007 WL 2915072, at *2 (quoting Kidd, 2004 WL 3756420, at *3); see also Sine, 882 F.2d at 914; Hirschkop v. Virginia State Bar Ass n, 406 F.Supp. 721, 724-25 (E.D.Va. 1975). Petitioners have framed their affidavit in terms of ten factual statements, committed a eight of which litany of errors deciding their judge s actions § 2255 or allege at petitions experience in that trial, the undersigned sentencing, and Rule 60(b) a case or and motion. related in A cases, however, do not constitute a basis to allege personal bias. Sine, 882 F.2d at 915 (citing Shaw v. Martin, 733 F.3d 304, 308 (4th Cir. 1984)). Thus, the majority of the allegations in Petitioners affidavit do not relate to conduct that is personal and extrajudicial in nature. While the remaining two allegations do allege extrajudicial bias, they are conclusory in nature and based on inadmissible 8 hearsay. First, Petitioners allege that the undersigned failed to recuse herself sua spont[e], when she discovered that she would be considering rulings made by her husband . . . [a] former [Maryland] state judge . . . in establishing Bracey s sentence. (ECF No. 287, Attach. 1, at 4). They point to no record support, however, demonstrating that the presiding judge ever discovered a potential conflict with regard to Petitioner Bracey s sentencing, much less that she did so prior to imposing his sentence. Indeed, Petitioner Bracey challenged numerous aspects of his sentence on appeal, but apparently failed to raise this issue, see United States v. Bracey, 104 F.3d 359 (4th Cir. 1996) (per curiam), and Petitioners have not raised this claim in any of their numerous filings throughout the extensive history of these proceedings. court was sentencing, aware of a Petitioners Absent any indicia that the potential allegation conflict as to at the what time the of court discovered is conclusory and insufficient as a matter of law. The final allegation contained in Petitioners purported affidavit is that the presiding judge was in attendance at an awards party held by the prosecutors, at which a plaque was awarded for the conviction of the petitioners. Attach. 1, at 5). (ECF No. 287, In support of this claim, Petitioners attach a purported letter, dated July 13, 2009, addressed to Petitioner Gray from attorney Jensen E. Barber, claiming that a source 9 had confirmed undersigned was by doing some frolicking old with time those snooping in that attendance the at a celebratory party for the prosecutors involved in Petitioners case. (ECF No. 287, Attach. 1, Ex. M).1 Mr. Barber further advises Mr. Gray that he will prepare and present a motion . . . which will be accompanied by my affidavit on this meritorious discovery. (Id.). No instant motion, however. such affidavit is attached to the Absent such, the purported letter is not properly authenticated and amounts to rank hearsay indeed, hearsay upon hearsay. Accordingly, it is incompetent to prove extrajudicial and personal bias. In sum, because Petitioners affidavit is both procedurally improper and legally insufficient, the motion for recusal need not be considered by another judge. Petitioners motion for recusal fails for the same reasons. Pursuant to the standard adopted by the Fourth Circuit with respect to § 455(a), the court must assess whether a reasonable observer, cognizant of all relevant 1 information, might The court takes judicial notice that Mr. Barber, a longstanding member of its bar who represented Petitioners at their trial, died on September 9, 2009. Thus, independent verification of the letter s authenticity is impractical, if not impossible. Nevertheless, the fact that Petitioners were apparently in possession of it for approximately seventeen months before moving for recusal on that basis, combined with the fact that it contains unorthodox and informal language and a multitude of grammatical errors, gives rise to grave doubts as to its authenticity. 10 reasonably Aside question from the the court s conclusory impartiality this matter. discussed allegations in above, Petitioners have not alleged any bias or prejudice stemming from an extrajudicial source. Thus, they have provided no basis upon which a reasonable, well-informed observer could question the court s impartiality. Accordingly, Petitioners motion for recusal will be denied. III. Motion for Reconsideration Courts have recognized three limited grounds for granting a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e): (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; manifest or (3) to injustice. correct See clear United error States of law ex or rel. prevent Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (citing Pacific Ins. Co. v. Am. Nat l Fire Ins. Co., 148 F.3d 396, 403 (4th (2003). Cir. 1998)), cert. denied, 538 U.S. 1012 A Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment. Co., 148 Practice F.3d and at 403 Procedure (quoting § 11 2810.1, at Wright, 127-28 Pacific Ins. et al., Federal ed. 1995)). (2d Where a party presents newly discovered evidence in support of its Rule 59(e) motion, it must 11 produce a legitimate justification for not presenting the evidence during the earlier proceeding. Id. (quoting Small v. Hunt, 98 F.3d 789, 798 (4th Cir. (internal 1996) reconsideration extraordinary of marks a remedy omitted)). judgment which should after be used In its entry general, is sparingly. an Id. (quoting Wright, et al., supra, § 2810.1, at 124). Petitioners motion for reconsideration does not satisfy any of the three grounds for reconsideration under Rule 59(e). More specifically, they have not identified any intervening change in the law, newly developed evidence, or clear error of law or manifest injustice that would cause the court to alter its prior opinion. Indeed, the only claim they raise that is cognizable under the Rule 59(e) standard i.e., that the court improperly reclassified their Rule 60(b)(6) motion as brought pursuant to Rule 60(b)(3) is based on a misunderstanding of the memorandum opinion. The court opined that their motion, although purportedly brought pursuant to Rule 60(b)(6), would seem to fall squarely within the rubric of subsection (b)(3), in which case it would be subject to a one-year limitation period. (ECF No. 283, at 8). Nevertheless, it also determined that Petitioners motion, brought over seven years after their § 2255 petitions, was not filed within a reasonable time of the discovery of the [alleged] fraud, nor did it come close to establishing extraordinary circumstances sufficient to permit 12 the reinstatement of their § 2255 petitions, as required under Rule 60(b)(6). reclassify the (Id. at claim, 10-11). but merely Thus, the court demonstrated that did not it was untimely under either standard. IV. Conclusion For the foregoing reasons, Petitioners motions for recusal and for reconsideration will be denied. A separate order will follow. ________/s/__________________ DEBORAH K. CHASANOW United States District Judge 13
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