Opinion
No. 1:99-cv-295/1:94-cr-118-04, Edgar.
February 22, 2005
MEMORANDUM
On August 13, 2004, defendant Kelcey Kendrick ("Kendrick") filed a pro se motion pursuant to Rule 60(b)(4) and (6) of the FEDERAL RULES OF CIVIL PROCEDURE. [Court File No. 28]. Kendrick moves for relief from or to vacate the judgment entered by this Court on April 17, 2002, [Court File No. 19] denying his motion for post-conviction relief under 28 U.S.C. § 2255. Kendrick's motion under FED. R. CIV. P. 60(b)(4) and (6) will be DENIED.
Kendrick also moves pursuant to 28 U.S.C. §§ 144 and 455 to disqualify the undersigned district judge from deciding the instant Rule 60(b) motion. The motion to disqualify [Court File No. 26] will be DENIED. I. Background
This Court entered the original judgment of conviction against Kendrick on August 31, 1995, based on a plea agreement and his plea of guilty. Kendrick took a direct appeal. While the appeal was pending in the Court of Appeals for the Sixth Circuit, the Supreme Court of the United States rendered its decision in Bailey v. United States, 516 U.S. 137 (1995), on December 6, 1995, clarifying what constitutes use of a firearm under 18 U.S.C. § 924(c)(1). In the aftermath of Bailey, the Sixth Circuit remanded Kendrick's case to the district court for reconsideration of his judgment of conviction and sentence. The remand order [Court File No. 326] did not place any limits and restrictions on the district court's authority to amend the judgment of conviction and resentence Kendrick if necessary.
On remand, this Court ordered Kendrick and the United States Attorney to submit briefs on the Bailey question. This Court held evidentiary hearings on August 13 and 27, 1996. Kendrick was represented by counsel. On August 28, 1996, this Court issued a memorandum opinion and order vacating Kendrick's conviction on the 18 U.S.C. § 924(c) offense charged in Count 31 of the indictment.
A sentencing hearing was held on September 23, 1996. The issue to be resolved at the sentencing hearing was whether Kendrick's sentence on Count 1 ( 21 U.S.C. § 846 conspiracy) should be revised and recalculated to include a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. During the sentencing hearing, this Court determined that a two-level enhancement in Kendrick's offense level pursuant to U.S.S.G. § 2D1.1(b)(1) was proper on Count 1.
On September 24, 1996, this Court entered an amended judgment of conviction against Kendrick. [Court File No. 388]. Kendrick took a direct appeal from the amended judgment of conviction. The Sixth Circuit affirmed the amended judgment and sentence, and dismissed the appeal. United States v. Pruitt, 156 F.3d 638 (6th Cir. 1998). The Sixth Circuit explicitly discussed and affirmed the enhancement of Kendrick's sentence on Count 1 pursuant to U.S.S.G. § 2D1.1(b)(1) for his possession of a firearm. Id. at 648-50.
Kendrick subsequently filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 which this Court denied on April 17, 2002. [Court File Nos. 18, 19]. On May 6, 2002, Kendrick filed a notice of appeal and a request for a certificate appealability pursuant to 28 U.S.C. § 2253(c). On July 9, 2002, this Court denied Kendrick's application for a certificate of appealability. [Court File No. 23]. Kendrick made a motion for a certificate of appealability to the Court of Appeals for the Sixth Circuit which was denied on March 11, 2003.
Kendrick next filed a petition for writ of certiorari to the Supreme Court of the United States which was denied by the Supreme Court on January 12, 2004. Kendrick v. United States, 540 U.S. 1133 (2004). Kendrick filed a petition for rehearing in the Supreme Court and it was denied on April 5, 2004. Kendrick v. United States, 124 S.Ct. 1902 (2004).
II. Motion Under FED. R. CIV. P. 60(b)(4) and (6)
Kendrick seeks to use FED. R. CIV. P. 60(b)(4) and (6) to relitigate and rehash his criminal case despite the amended judgment of conviction being affirmed on appeal by the Court of Appeals for the Sixth Circuit and despite Kendrick's § 2255 motion being denied. Kendrick wants yet another bite at the apple.
The threshold issue is whether Kendrick can utilize FED. R. CIV. P. 60(b)(4) and (6) to seek relief from the judgment denying his motion under 28 U.S.C. § 2255. Rule 60(b) is a rule of civil procedure, not criminal procedure. Generally, Rule 60(b) is not applicable to criminal cases. United States v. Bender, 2004 WL 898721 (6th Cir. April 26, 2004); United States v. Hart/Cross, 230 F.3d 1360 (Table, text at 2000 WL 1359639 (6th Cir. Sept. 15, 2000); Williams v. United States, 149 F.3d 1185 (Table, text at 1996 WL 384320 (6th Cir. June 18, 1998)); United States v. Worthy, 142 F.3d 438 (Table, text at 1998 WL 136208 (6th Cir. March 18, 1998)); United States v. Davis, 930 F.3d 919 (Table, text at 1991 WL 52900 (6th Cir. April 10, 1991)); accord United States v. Fair, 326 F.3d 1317 (11th Cir. 2003); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).
When a § 2255 motion is filed, it is docketed by the Clerk of Court as part of the original criminal case but it is also assigned a new civil case number for statistical purposes as required by the Administrative Office of the Courts. United States v. Cook, 997 F.2d 1312, 1315 n. 1 (10th Cir. 1993); Williams v. United States, 984 F.2d 28, 29-30 n. 1 (2nd Cir. 1993); United States v. Allen, 613 F.2d 1248, 1251 n. 5 (3rd Cir. 1980). A § 2255 motion is considered to have a dual nature with characteristics of both criminal and civil habeas proceedings. United States v. Means, 133 F.3d 444, 448-49 (6th Cir 1998) A motion for post-conviction relief under 28 U.S.C. § 2255 is a continuing part of the underlying federal criminal case. It is also civil in nature because § 2255 is a statutory remedy created for federal prisoners which is closely analogous to petitions for writ of habeas corpus. Habeas corpus proceedings are generally characterized as being civil in nature. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 269 (1978); Harris v. Nelson, 394 U.S. 286, 293-94 (1969).
FED. R. CIV. P. 60(b) can have some limited application in prisoner habeas corpus proceedings and post-conviction proceedings under 28 U.S.C. § 2255. Bender, 2004 WL 898721; In re Abu-Ali Abdur'Rahman, 2004 WL 2847749 (6th Cir. December 13, 2004); McQueen v. Scroggy, 99 F.3d 1302, 1334-35 (6th Cir. 1996). In an unpublished opinion in Bender, 2004 WL 898721 at * 1, the Sixth Circuit states that a Rule 60(b) motion may be used by a federal prisoner to seek relief from the denial of a § 2255 motion, but only if the Rule 60(b) motion pertains to issues that were decided in the § 2255 case.
The instant Rule 60(b) motion by Kendrick directly challenges this Court's analysis and decision in his § 2255 proceeding. Based on Bender, 2004 WL 898721 at * 1, Kendrick can bring a Rule 60(b) motion seeking relief from the denial of his § 2255 motion, but only to the limited extent that his Rule 60(b) motion pertains to the specific issues that were decided in the § 2255 proceeding.
Although Rule 60(b) is applicable and Kendrick can bring a motion under Rule 60(b), this does not necessarily mean that he is entitled to any relief. Kendrick seeks to utilize Rule 60(b)(4) and (6) to merely relitigate his criminal case and the adverse judgment in his § 2255 proceeding. A Rule 60(b) motion is not a substitute for an appeal.
The Court concludes that Kendrick's motion under FED. R. CIV. P. 60(b)(4) and (6) must be summarily denied as untimely. FED. R. CIV. P. 60(b) provides that motions seeking relief pursuant to Rule 60(b)(4) and (6) "shall be made within a reasonable time." See United States v. Dailide, 316 F.3d 611, 617 (6th Cir.) cert. denied, 540 U.S. 876 (2003). What constitutes "reasonable time" under Rule 60(b) depends on the facts and circumstances in each case. The Court takes into consideration the strong public policy favoring the finality of judgments, the length of delay, the movant's reason for delay, the practical ability of the movant to learn earlier of the grounds relied upon, prejudice to other parties, and any circumstances that compel the granting of equitable relief. Kendrick bears the burden of showing that his long delay in filing his Rule 60(b) motion is justified. Ohio Casualty Insurance Co. v. Pulliam, 182 F.3d 918 (Table, text at 1999 WL 455336 (6th Cir. June 23, 1999)); Richard v. Allen, 78 F.3d 585 (Table, text at 1996 WL 102419 (6th Cir. March 7, 1996)).
The Court finds that Kendrick did not file his Rule 60(b)(4) and (6) motion within a reasonable time. This Court's judgment denying Kendrick's § 2255 motion was entered on April 17, 2002. Kendrick waited and delayed for over two years before filing his Rule 60(b) motion on August 13, 2004. Kendrick has not met his burden of showing that there is any good reason or justification for the long delay. There are no extraordinary circumstances present here that compel this Court to grant equitable relief to Kendrick under Rule 60(b)(4) and (6). It plainly appears from the record that all of the various claims and arguments raised by Kendrick in his Rule 60(b) motion were known to him in April 2002, when he received a copy of the judgment rendered by this Court on April 17, 2002.
Although Kendrick sought to appeal the denial of his § 2255 motion to the Court of Appeals for the Sixth Circuit and the Supreme Court of the United States, there is nothing law that prevented Kendrick from contemporaneously filing a Rule 60(b) motion for relief from the judgment in this District Court while his "appeal" was pending. Dailide, 316 F.3d at 618. In other words, Kendrick cannot use the fact that he was making an effort to appeal the judgment denying his § 2255 motion as a valid reason or justification for the more than two year delay in filing his Rule 60(b) motion. Accordingly, the motion for relief under Rule 60(b)(4) and (6) will be denied as untimely.
III. Motion to Disqualify District Judge
Kendrick's motion to disqualify the undersigned district judge [Court File No. 26] is without merit and will be DENIED. The undersigned district judge will not disqualify and recuse himself from deciding the instant Rule 60(b) motion.
28 U.S.C. § 144 provides:
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.28 U.S.C. § 455 provides in pertinent part:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;. . . .
These statutes are construed in pari materia. Youn v. Track, Inc., 324 F.3d 409, 423 (Cir. 2003); Green v. Nevers, 111 F.3d 1285, 1303 (6th Cir. 1997); Easley v. University of Michigan Board of Regents, 853 F.2d 1351, 1355 (6th Cir. 1988); United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983). Motions to disqualify under 28 U.S.C. §§ 144 and 455 are entrusted to the sound discretion of the district judge. Green, 111 F.3d at 1303; In re M. Ibrahim, P.S.C., 751 F.2d 162, 165 (6th Cir. 1988). Although § 144 on its face appears to require automatic, mandatory disqualification once a motion and affidavit are filed, it is well settled that the district judge has the authority and the duty to examine the affidavit to determine whether it is timely and legally sufficient. Berger v. United States, 255 U.S. 22, 32 (1921); United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993); Easley, 853 F.2d at 1355-56; In re City of Detroit, 828 F.2d 1160, 1164 n. 2 (6th Cir. 1987).
The main difference between 28 U.S.C. § 144 and § 455 is that § 455 is selfexecuting. Section 455 requires a federal judge to sua sponte recuse for personal bias or prejudice even in the absence of a party's motion to disqualify. Easley, 853 F.2d at 1356; Story, 716 F.2d at 1091. Disqualification under § 455 is mandated if a reasonable person, knowing all of the facts and circumstances, might question the judge's impartiality. In sum, a federal judge must sua sponte recuse under § 455 if the judge knows of facts that would undermine the appearance of impartiality in the minds of reasonable persons. Liteky v. United States, 510 U.S. 540, 547-48 (1994); Youn, 324 F.3d at 422-23; Reed v. Rhodes, 179 F.3d 453, 467 (6th Cir. 1999); Consolidated Rail Corp. v. Yashinsky, 170 F.3d 591, 597 (6th Cir. 1999); Union Planters Bank v. LJ Development Co., Inc., 115 F.3d 378, 383 (6th Cir. 1997); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993); United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990); Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246, 1251-52 (6th Cir. 1989); Easley, 906 F.2d at 1356; Story, 716 F.2d at 1090-91.
Generally, the same standard applies under § 144. An affidavit filed under § 144 must allege specific facts which a reasonable person would believe indicate that a judge is personally biased or prejudiced against the moving party. Youn, 324 F.3d at 423; Ullmo ex rel. Ullmo v. Gilmour Academy, 273 F.3d 671, 681 (6th Cir. 2001); General Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1043 (6th Cir. 1990). The standard is an objective one. Liteky, 510 U.S. 540; Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865 (1988); Dandy, 998 F.2d at 1349; Sammons, 918 F.2d at 599. A judge need not recuse or disqualify himself based solely on the subjective view of a disgruntled party, no matter how strongly that subjective view is held. Sammons, 918 F.2d at 599; Browning v. Folz, 837 F.2d 276, 279 (6th Cir. 1988). Kendrick bears the burden of showing that an objectively reasonable person would believe that the undersigned district judge is personally biased or prejudiced against him. Consolidated Rail Corp., 170 F.3d at 597; Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991).
Disqualification for personal bias or prejudice under §§ 144 and 455 is subject to the limitation of the extrajudicial source doctrine. Liteky, 510 U.S. at 540; United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); Youn, 324 F.3d at 423; United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000); United States v. Hartsell, 199 F.3d 812, 820 (6th Cir. 1999); Reed, 179 F.3d at 468; Green, 111 F.3d at 1303-04; Matter of Maurice, 73 F.3d 124, 126 (6th Cir. 1995); In re Adams, 31 F.3d 389, 396 (6th Cir. 1994); Sammons, 918 F.2d at 599; Wheeler, 875 F.2d at 1251-52; Easley, 853 F.2d at 1356; Story, 716 F.2d at 1090-91. The alleged bias and prejudice must "stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Grinnell Corp., 384 U.S. at 583; accord Youn, 324 F.3d at 423; Sammons, 918 F.2d at 599; Wheeler, 875 F.2d at 1251-52.
Kendrick must allege specific, non-conclusory facts showing a personal bias or prejudice against him that emanates from an extrajudicial source as distinguished from a judicial source, i.e. court proceedings. The alleged bias or prejudice must arise out of the judge's background and associations, and not from the judge's view of the law. Youn, 324 F.3d at 423; Ullmo, 273 F.3d at 681; Consolidated Rail Corp., 170 F.3d at 597; Green, 111 F.3d at 1303-04; Story, 716 F.2d at 1090-91. Kendrick cannot make the requisite showing of personal bias or prejudice necessary for disqualification and recusal under 28 U.S.C. §§ 144 and 455 based on an extrajudicial source merely by arguing that the undersigned district judge has made, what Kendrick believes to be, erroneous findings of fact and conclusions of law.
In Liteky, the Supreme Court explains several important guiding principles. Judicial rulings alone almost never constitute a valid basis to disqualify a judge on the ground of personal bias or prejudice. Only in the rarest of circumstances will a judicial decision evidence the degree of personal bias, animosity, or prejudice required for disqualification when no extrajudicial source is involved. Almost invariably, judicial decisions may be appealed but they are not a proper basis for disqualification under 28 U.S.C. §§ 144 and 455. An opinion formed by a judge on the basis of facts introduced or events occurring in the course of judicial proceedings does not constitute a valid basis for a motion to disqualify unless the judge's opinion displays "a deep-seated favoritism or antagonism that would make fair judgment impossible." Judicial remarks and comments that are critical or disapproving of, or even hostile to, a party or counsel, or to a party's case, ordinarily do not support a motion to disqualify a judge for personal bias or prejudice. Liteky, 510 U.S. at 555; see also Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002); Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 731 (6th Cir. 1999); Green, 111 F.3d at 1303-04; Matter of Huntington Commons Associates, 21 F.3d 157 (6th Cir. 1994).
The Court finds that Kendrick's motion to disqualify and his supporting affidavit are patently deficient. Kendrick has not met his burden of alleging sufficient facts to establish there is a genuine basis for an objectively reasonable person to believe that the undersigned district judge harbors any personal bias or prejudice against Kendrick emanating from an extrajudicial source. The facts alleged by Kendrick are entirely insufficient to show any bias or prejudice against him under the extrajudicial source doctrine. Although Kendrick strongly disagrees with the undersigned district judge's rulings and decision in his criminal case and the amended judgment of conviction, this does not constitute a sufficient factual and legal basis for disqualification or recusal. The undersigned district judge cannot be disqualified pursuant to §§ 144 and 455 merely because Kendrick disagrees with this judge's views of the facts and the law.
Moreover, the decisions rendered by the undersigned district judge in Kendrick's criminal case do not contain any improper comments or remarks that display a deep-seated personal bias, prejudice, or antagonism against Kendrick that would make fair and impartial judgment impossible. Kendrick may subjectively believe that the undersigned district judge is biased or prejudiced against him. However, the undersigned judge need not recuse himself based on the subjective views of Kendrick, no matter how strongly those subjective views are held. Sammons, 918 F.2d at 599; Browning, 837 F.2d at 279.
IV. Conclusion
Kendrick's motion [Court File No. 28] for relief under FED. R. CIV. P. 60(b)(4) and (6) will be DENIED. Kendrick's motion [Court File No. 26] to disqualify the undersigned district judge under 28 U.S.C. §§ 144 and 455 will be DENIED. An order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion [Court File No. 28] by defendant Kelcey Tramayne Kendrick pursuant to Rule 60(b)(4) and (6) of the FEDERAL RULES OF CIVIL PROCEDURE for relief from or to vacate the judgment entered by this Court on April 17, 2002, denying his motion for post-conviction relief under 28 U.S.C. § 2255 is DENIED. The defendant's motion [Court File No. 26] to disqualify the undersigned district judge pursuant to 28 U.S.C. §§ 144 and 455 is DENIED. This is a FINAL JUDGMENT. The Clerk of Court shall close the record in this case.SO ORDERED.