Opinion
00 Civ. 1686 (RWS)
October 13, 2000
STEVEN JUDE HOFFENBERG, Petitioner Pro Se #35601-054, Bradford, PA.
HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York, Attorney for United States of America, New York, NY, JENNIFER G. RODGERS, AUSA Of Counsel.
OPINION
Pro se petitioner Steven Jude Hoffenberg ("Hoffenberg") has filed a recusal motion pursuant to 28 U.S.C. § 144 and 455 on the basis of an alleged conflict of interest that he fears will influence the outcome of his collateral attack on his two convictions, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied for lack of jurisdiction.
Background
On April 20, 1995, Hoffenberg pled guilty to four criminal counts in two cases, Nos. 94 Cr. 213 and 95 Cr. 321. Hoffenberg moved for specific performance of his plea agreement, and, when that motion was denied, moved to withdraw his guilty plea. That motion was denied, and Hoffenberg was sentenced on March 7, 1997. Hoffenberg appealed to the Second Circuit, which affirmed the convictions February 4, 1999.
On December 13, 1999, Hoffenberg sent a letter motion requesting permission to file his § 2255 motion with another judge due to the possibility of conflict. I denied that motion on January 5, 2000 on the grounds that no proceeding was pending before me in Hoffenberg's case.
Hoffenberg sent a second letter motion on January 14, 2000 seeking my recusal, in which he stated that he "can not read or interpret" my January 5 handwritten denial of his first recusal motion. I denied the motion on January 28, 2000 on the grounds that there was "no jurisdiction in this court." See No. 94 Cr. 213, Doc. #119. Hoffenberg appealed the latter ruling to the Second Circuit, which dismissed the appeal without prejudice on March 17, 2000 for lack of a specific grant or denial of a certificate of appealability.
Meanwhile, Hoffenberg had sent a second, identical handwritten motion to this Court's Pro Se Office, which assigned the case as a § 2255 motion to the Honorable Thomas P. Griesa. See No. 00 Civ. 1686, Doc. # 1. In a detailed and thoughtful opinion, Judge Griesa held that the motion raised no constitutional grounds for attacking Hoffenberg's criminal convictions that could properly be construed as a § 2255 motion. Hoffenberg v. United States, No. 00 Civ. 1686 (TPG) (S.D.N.Y. March 6, 2000). In that Order, Judge Griesa outlined the rules for filing and supporting collateral attacks to federal sentences, advised Hoffenberg that he would have to file separate § 2255 motions for each case in which he sought to attack a conviction, and alerted Hoffenberg to the mandatory one- year time statute of limitations for bringing such appeals. Id. at 2 n. 2, 3. Furthermore, the opinion stated that "the proper time to bring [a motion to recuse] is after [Hoffenberg] files an amended petition in compliance with this order and his case is reassigned to a District Judge." Id. at 2 n. 4. Hoffenberg was granted sixty days in which to file an amended § 2255 petition raising constitutional claims. A certificate of appealability was not issued because Hoffenberg "failed to make a substantial showing of the denial of a constitutional right." Id. at 5.
Upon Hoffenberg's request, Judge Griesa granted him an extension and ordered that the amended petition was due on July 26, 2000. Hoffenberg v. United States, No. 00 Civ. 1686 (TPG) (S.D.N.Y. April 26, 2000). The Order granting the extension specified that "[i]f [Hoffenberg] fails to submit his amended petition within the time prescribed, this case will be dismissed without prejudice." Id. On July 27, 2000, after Hoffenberg had failed to file an amended petition, Case No. 00 Civ. 1686 was transferred to this chambers.
On August 8, 2000 Hoffenberg filed a third "conflict" motion seeking to have me reassign his case to another judge. I ordered the respondent to file an answer or motion in forty days, which was extended to November 18, 2000 upon request for an extension.
Discussion I. Recusal A. Requirement of a Pending "Proceeding"
As a preliminary matter, a petitioner's motion to disqualify a judge due to a conflict of interest is viable only if the judge is presiding over a "proceeding" in which his impartiality might be questioned. 28 U.S.C. § 144, 455(a). A "proceeding" is a matter pending during "pretrial, trial, appellate review, or other stages of litigation." 28 U.S.C. § 455(d)(1). This definition includes phases of litigation in which "a judge has already decided, or is in the process of deciding, the most significant issues presented in a case." United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988).
B. No "Proceeding" is Pending Before this Court
Despite filing numerous motions since his appeal became final, to date Hoffenberg has not filed any motion raising a substantive attack on his convictions that could properly be construed as a "proceeding" under the definition set forth in § 455(d)(1).
Hoffenberg's "conflict" motions sought to remove his " 28 U.S.C. § 2255 proceeding" to another judge. Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. Such a motion is proper, however, only if the petitioner raises any one of the following grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C.A. § 2255.
As Judge Griesa noted in his March 6, 2000 Order, Hoffenberg has submitted no motions that can be construed as raising any of these grounds to attack his convictions. Moreover, Hoffenberg has not subsequently filed any documents that would satisfy the requirements of § 2255, even if liberally construed.
The period between the time the notice of appeal is filed and the initiation of a § 2255 motion, when there are no motions pending, is not a period in which the district judge is "in the process" of deciding anything. Cf. Sciarra, 851 F.2d at 635 (holding the "proceeding" requirement of § 455 "to embrace only such activity following the initiation of an action . . . designed ultimately to modify or affect the substantive rights of a litigant," in other words, "actual controversies"); In re Cement Antitrust Litigation, (MDL No. 296), 673 F.2d 1020, 1024-25 (9th Cir. 1982) (refusing "to construe the word `proceeding' to include the performance of ministerial duties such as assigning a case to another judge."); Centre For the Independence of Judges and Lawyers of the United States, Inc. v. Mabey, 19 B.R. 635, 643 (D.Utah 1982) (holding that "proceeding" requirement "is directed to potential conflicts of interest in the context of an adversary proceeding").
C. The Motion to Recuse is Denied for Lack of
Jurisdiction Hoffenberg's recusal motion may not be heard unless he files a proper post-conviction motion pursuant to 28 U.S.C. § 2255. The motion to recuse will be denied for lack of jurisdiction.
II. A Section 2255 Motion is Time-Barred
However, a petitioner may not bring a § 2255 motion at any time. Such a motion is only proper when filed within one year of the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C.A. § 2255. As Hoffenberg has not raised any suggestion of new evidence or applicable new constitutional law, subsections (3) and (4) are not applicable. Moreover, the denials of Hoffenberg's recusal motions do not qualify as an unconstitutional "governmental impediment" that prevented him from filing a proper motion attacking the substance of his conviction under subsection (2).
Thus, subsection (1) supplies the relevant parameters of the one-year statute of limitations in Hoffenberg's case. Hoffenberg had one year to file a § 2255 motion from the date his conviction became final, February 4, 1999. He did not do so, either within one year or since. As a result, § 2255 bars Hoffenberg from filing a motion challenging the substance of his conviction.
III. No Certificate of Appealability Will Issue
As Hoffenberg has failed to make a substantial showing of the denial of any constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997). I certify pursuant to the Prisoner Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. § 1915(a)(3), that any appeal from this order, or from my order of January 28, 2000 denying his prior recusal motion, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Conclusion
For the reasons discussed above, the motion to recuse is denied and a § 2255 motion is held to be time-barred. A certificate of appealability is denied.
It is so ordered.